Park Edge Sheridan Meats, Inc.

PARK EDGE SHERIDAN MEATS, INC., ETC. 289 IT IS HEREBY ORDERED that the Decision and Order issued on July 29, 1963, be, and it hereby is, amended by deleting from the Order therein, and from the attached notice marked "Appendix," all reference to Locals 11, 182, 105, and 404. 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 Benatovich, and Max Bernhardt, d/b/a Park Edge Groceries ; Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich, d/b/a Benatovich Bros.; Harry Benatovich, Samuel Bena- tovich, Louis Benatovich, Hyman Benatovich, and Max Bern- hardt, d/b/a Park Edge Super Markets, Grocery Division and Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO Park Edge Sheridan Meats, Inc. and Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO Park Edge Sheridan Meats, Inc. and Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO. Cases Nos. 3-CA-1971,3-CA-1996, and 3-RC-2957. March 9, 1964 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On August 20, 1963, Trial Examiner Charles W. Whittemore issued his Intermediate Report and Recommended Order in the above- entitled consolidated proceedings, finding that the evidence failed to sustain both the unfair labor practice allegations of the complaint in Case No. 3-CA-1971 and the objections to the election in Case No. 3-RC-2957.1 He therefore recommended that the complaint be dis- missed and the objections to the election be overruled, as set forth in the attached Intermediate Report. Thereafter, the General Coun- sel and the Charging Party filed exceptions to the Intermediate Report, the General Counsel filed a brief in support of his exceptions, and the Respondent filed a brief in support of the Trial Examiner's dismissal of the complaint. 3 The election was conducted December 6, 1962, on the basis of a petition filed Septem- ber 20, 1962. The record herein shows that of 29 eligible voters, 8 voted for, and 8 against, the Union and 13 ballots were challenged. 146 NLRB No. 32. 290 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD 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 Leedom, 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. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner to the extent consistent with this Decision and Order. A. We do not agree with the Trial Examiner's dismissal of the Section 8(a) (1) allegations of the complaint. In our view, the facts found by the Trial Examiner, together with those testified to by witnesses whom he expressly credited, amply establish that the Re- spondent unlawfully interfered with, restrained, or coerced employees in the exercise of Section 7 rights, as follows : 2 1. As set out in the Intermediate Report, union activity among employees at Park Edge Sheridan Meats, Inc., store, after a period of dormancy, was revived in July 1962 3 Employee Rodeghiero initiated the revival of organizational efforts by contacting the Union, and he-thereafter played a leading part in soliciting employee signatures to union designation cards. As appears from undisputed evidence, Respondent became aware of this renewed employee interest in the Union and of Rodeghiero's leadership role in it. In mid-September, Hyman Benatovich, 'a copartner in Respondent's enterprises, called Rodeghiero to his office and warned the latter, as the Trial Examiner found, that Respondent would not tolerate "any more union talking on company premises." By thus promulgating this broad no-solicita- tion rule, the Respondent unlawfully restrained employee exercise of rights guaranteed them by Section 7 of the Act' 2. In mid-September, Supervisor Kostecki told employee Bartel that he was aware that Bartel had signed a card for the Union. And, on the day before the Board election, Samuel Benatovich, general manager and copartner of Respondent, told Bartel that he knew that Bartel had attended a party given by the Union the night before and the he knew that Bartel was going to "vote Union" on the following day. By these remarks of Kostecki and Benatovich, Respondent im- plied surveillance of employees' union activities. 2 Respondent's conduct in the instant case must be assessed against the backdrop of its earlier unfair labor practices as found by the Board in 139 NLRB 748, enfd. 323 F. 2d 956 (C.A. 1). - $ All dates herein are for the year 1962 unless expressly stated otherwise. See, e g., Bin-Dicator Co., 143 NLRB 964 , and cases there cited . See also Florida Sugar Corporation, 142 NLRB 460. PARK EDGE SHERIDAN MEATS, INC., ETC. 291 3. On the eve of the election, Supervisor Kostecki took employees Gedra and Jacubzak to dinner and utilized the occasion to engage them in a discussion concerning the Union. As appears from the evidence to which the Trial Examiner adverted, Kostecki made clear Respond- ent's determination to "beat" the Union, told both employees they were "foolish and a bunch of dummies" if they wanted the Union, and in- quired of them, in effect, whether they were going to be "with him." On the basis of such evidence, the Trial Examiner disposed of the "dinner" incident as but a "minor infraction" of the Act. In addi- tion to these facts reported in the Intermediate Report, it 'appears from the testimony of the witness credited by the Trial Examiner as to this incident, and whom we credit, that Kostecki also told the employees that they did not need a union and that they should have discussed with him directly their desire to obtain certain work bene- fits which they apparently hope to gain through union representation. Kostecki went on to add that, if the employees wanted assurance that they would receive that benefit, he would "get it down in writing." Contrary to the Trial Examiner we find unlawful interrogation of Gedra and Jacubzak in this evidence and we are satisfied, and find, that the clear implication of Kostecki's last-mentioned remark was a promise of benefits if the employees would forgo the Union. 4. After the election, Attorney Berg, in the course of investigating challenged ballots critical to the election, interrogated employee Folvarcik as to whether employee Jacubzak was "union." Jacubzak's union affiliation or sympathy was, of course, wholly irrelevant to Re- spondent's investigation of the challenged ballots.' In the circum- stances of this case, we find that the interrogation of Folvarcik•by the Respondent's attorney constituted unlawful interference with employee statutory rights. B. Nor do we agree with the Trial Examiner that Respondent's discharge of Andrews Rodeghiero on November 5, 1962, was not un- lawfully motivated. As appears from the Intermediate Report,- the critical issue here is whether Respondent used the information acquired on October 31 of Rodeghiero's 16-year old conviction as a convenient pretext for rid- ding itself of a prominent union leader or whether the information resulted in Rodeghiero's discharge for wholly legitimate considera- tions. Despite his "not inconsiderable suspicion" of antiunion motiva- tion, the Trial Examiner resolved this issue in favor of Respondent on a basis we deem erroneous for the following reasons. Respondent explained its termination of Rodeghiero gat the hearing on the ground that, in light of the character of the offense (second de- 8 Jacubzak was not among the challenged voters. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gree assault) for which Rodeghiero was convicted, it believed Rodeghiero to be potentially dangerous to customers or to other employees in a butcher job requiring the use of knives. However, Rodeghiero had been in Respondent's employ for more than 2 years as of the time of his discharge; and immediately before he began to work for the Respondent, he had been an employee of a meat conces- sionaire in a store of the Respondent for a period of about 3 years. Respondent was therefore fully familiar with Rodeghiero's work record and behavior as a butcher. And during, this period of Rodeghiero's continuous employment there admittedly had been no untoward incident of any kind which might even suggest grounds for Respondent's claimed reason for terminating Rodeghiero. Upon the entire record, we are unable to accept Respondent's claim that, upon learning of Rodeghiero's conviction some 16 years before, its officials suddenly became fearful that Rodeghiero was a potentially dangerous employee whose immediate removal was necessary for the safety of other employees and customers. We believe, rather, that the true explanation for Respondent's decision to discharge Rodeghiero at the height of the Union's campaign is to be found in the following facts and circumstances : (1) As clearly demonstrated in this and in the earlier complaint case, as well, Respondent was op- posed to the Union and sought to undermine and defeat it; (2) its officials knew Rodeghiero to be a leading union proponent in the plant, and they had observed his appearance as the sole union witness at the representation hearing shortly !before the termination; 6 (3) its officials and agents had previously made known to Rodeghiero and to other employees Respondent's displeasure with the revival of the Union's campaign and had specifically warned Rodeghiero not to engage in "union talk" on their premises (the Trial Examiner himself found that Respondent resented Rodeghiero's continued activity on behalf of the Union) ; and (4) Respondent does not question Rodeghiero's ability to perform his duties as a butcher and admittedly did not discharge him for,any dereliction in such duties. Considering all the foregoing facts, together with the unconvinc- ing reasons assigned for the discharge, we are convinced and find that Respondent seized upon the discovery of the 16-year-old conviction as a pretext for ridding itself of Rodeghiero because of his continued activity on behalf of the Union, culminating in his appearance as a union witness at a Board hearing. We conclude, accordingly, that, by discharging Rodeghiero on November 5, 1962, Respondent violated Section 8(a) (3) and (4) of the Act, as alleged in the complaint. 9 As Indicated by the Trial Examiner , it was Berg's recollection of Rodeghiero as wit- ness at this hearing which prompted him to look into Rodeghiero's past record , which he turned over to his father-in-law, Samuel Benatovich. PARK EDGE SHERIDAN MEATS, INC., ETC. 293 C. Finally, we find that the Respondent's unlawful conduct which occurred during the critical election period' constituted improper in- terference with the election warranting our setting it aside.,, We shall therefore set aside the election of December 6, 1962, and direct the Regional Director for the Third Region to hold another election at such time as he deems circumstances permit a free choice of a bar- gaining representative. CONCLUSIONS Or LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By interrogating employees with respect to union activity and membership, promising them benefits to interfere with the exercise of their right to engage in union activity, giving the appearance of engaging in surveillance of their union activities, and promulgating an invalid no-solicitation rule, Respondent engaged in conduct that interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a) (1) of the Act. 3. By discharging Andrew Rodeghiero on November 5, 1962, be- cause of his union activity and appearance as a witness in a Board proceeding, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1), (3), and (4) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Respondent, Park Edge Sheridan Meats, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees with respect to union activity or adherence in a manner constituting interference with, coercion, or restraint in violation of Section 8 (a) (1) of the Act. 7 The critical period fell between September 20, 1962, the date the representation peti- tion was filed, and December 6, 1962, the date of the election. S In view of our findings and disposition herein, we deem it unnecessary to consider' other evidence which, the General Counsel maintains , shows further violations of the Act by Respondents. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Promising employees benefits to induce them to forgo or not select the Union, or 'any other labor organization, as their collective- bargaining representative. (c) Giving the appearance of engaging in the surveillance of em- ployees' union activities or other concerted activities. (d) Promulgating an invalid no-solicitation rule. (e) Discouraging membership in Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or in any other labor organization of its employees, by discriminating in regard to their hire or tenure or any term or condition of their employment. (f) Discriminating against any employee in the hire and tenure of his employment or any condition of employment because he has given testimony in a Board proceeding. (g) In any other manner interfering with, restraining, or coerc- ing employees in the exercise of their rights to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a union as au- thorized by Section 8(a) (3) of the Act, as amended.' 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Offer Andrew Rodeghiero immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him by payment to him of a sum money equivalent to that which he would have earned as wages from the date of his discharge to the date of his reinstatement to his former or substantially equiv- alent position.10 (b) Preserve and, upon request,' make available to the Board or its agents, for examination and copying, all payroll records; social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the 'amount of backpay due under the terms of this Order. 9 We deem this broad cease-and-desist provision necessary in light of the nature and extent of the Respondent's violations . Cf. the earlier order against Respondent, as en- forced by the court. Supra, footnote 2. 10 Backpay, including payment of interest at,6 percent, shall be computed in accordance with Board 's usual practices . See Crossett Lumber Company, 8 NLRB 440 ; F. W. Wool- worth Company, 90 NLRB 289 ; A.P.W. Products Co., Inc., 137 NLRB 25; I8i8 Plumbing & Heating Co ., 138 NLRB 716. - PARK EDGE SHERIDAN MEATS, INC., ETC. 295 (c) Post at its stores in Buffalo, New York, copies of-the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the representative of Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Rea- sonable steps.shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. [The Board set aside the election held December 6, 1962, among the employees of Park Sheridan Meats, Inc.] [Text of Direction of Second Election omitted from publication.] MEMBER LEEDOM, dissenting in part : Unlike my colleagues, I would affirm the Trial Examiner's conclu- sion that the allegations of the complaint with respect to Rodeghiero's discharge should be dismissed. As the Trial Examiner finds, the evidence raises a "not inconsiderable suspicion" that this discharge was unlawful. Suspicion, however, is not enough,12 and, on this rec- ord, I agree with the Trial Examiner that the General Counsel has not sustained his burden of proving this alleged violation by a preponder- ance of the credible evidence. Although I would dismiss the com- plaint in this respect, I agree with my colleagues' other findings that the Respondent violated Section 8(a) (1) of the Act and that the elec- tion should .be set aside. n In the event that this. Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "A Decision and Order " the words "A Decree of the United States Court of Appeals , Enforcing an Order." 12Lo-K Foods, Inc., 134 NLRB 956, 957. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, 'as amended, we hereby notify our employees that : WE WILL NOT question employees with respect to union activity or adherence in a manner constituting interference with, re- straint, or coercion in violation of Section 8(a) (1) of the Na- tional Labor Relations Act, as amended. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT promise employees benefits to induce them to forgo or not to select Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, as their collective-bargaining representative. WE WILL NOT give the appearance of engaging in the surveil- lance of employees' union activities, or other concerted activities. WE WILL. NOT promulgate an invalid no-solicitation rule. WE WILL NOT discourage membership in, or activities on be- half of, Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, by discriminating in the hire or tenure of employ- ment or any term or condition of employment of any employee. WE WILL NOT discharge or otherwise discriminate against any employee because he has given testimony in a proceeding under the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organiza- tion, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement re- quiring union membership as authorized by Section 8(a) (3) of the Act, as amended. WE WILL offer Andrew Rodeghiero immediate and full rein- statement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. . All our employees are free to become, remain, or refrain from be- coming or remaining, members of any labor organization. PARS EDGE SHERIDAN MEATS, INC., Employer. Dated-- -------------- By------------------------------------- (Representative ) (Title) NOTE.-In the event the above-named employee is presently serving in the Armed Forces of the United States we will notify him of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Serv- ice Act of 1948, as amended, after discharge from the Armed Forces. PARK EDGE SHERIDAN MEATS, INC., ETC. 297 This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. Ti. 6-1782, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE In Cases Nos. 3-CA-1971 and 3-CA-1996, Local 34, Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO, herein called the Union, filed charges , respectively, on November 5 and December 11, 1962 . Said charges were duly served upon Park Edge Sheridan Meats, Inc., herein called the Respond- ent. On March 29, 1963 , the Regional Director for the Third Region of the National Labor Relations Board issued an order directing hearing in Case No. 3-RC-2957, concerning certain issues raised in the said Union 's objections to an election conducted in December 1962. ' Also on March 29 the General Counsel of the Board issued and served an order consolidating the three cases, a complaint, and a notice of hearing thereon . The complaint alleges that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1), (3 ), and (4) of the National Labor Relations Act, as amended . Thereafter the Respondent filed its answer, dated April 8, denying . the commission of unfair labor practices and objecting to the consolidation of the cases. Pursuant to notice, a hearing was held in Buffalo, New York, on June 17 and 18, 1963 , before Trial Examiner C. W. Whittemore. ' At the hearing all parties were represented by counsel and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from the Respondent and General Counsel. After the close of the hearing a motion was received from General Counsel urg- ing certain typographical corrections in the official transcript. Proof of service was attached. No objections having been received , the Trial Examiner grants said motion, and orders that the corrections cited therein be made , and that the motion be made a part of the record in these proceedings. Disposition of the Respondent's motion to dismiss the complaint, upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Based upon the Board's findings in 139 NLRB 748, in Case No. 3-CA-1676, simi- larly entitled and involving the same parties, and upon the fact that at the hearing before the Trial Examiner the Respondent failed to offer any evidence to support its mere denial of jurisdictional allegations in the present complaint, the Trial Examiner finds: (1) Park Edge Sheridan Meats , Inc., is a New York corporation engaged in the retail sale of meat and meat products at its store located at 2309 Eggert Road, Tonawanda, New York. (2) Park Edge McKinley Meats, Inc., is a New York corporation engaged in the retail sale of meats and meat products at its store located at 942 McKinley Parkway, Buffalo, New York. (3) Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich are copartners doing business under the trade name and style of Park Edge Super Markets, Produce Division , and are engaged in the retail sale of produce at Park Edge Sheridan. (4) 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 are engaged in the retatil sale of groceries at Park Edge Sheridan. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) Harry Benatovich, Samuel Benatovich, Louis Benatovich, Hyman Benatovich, and Max Bernhardt are copartners doing business under the trade name and style of Park Edge Groceries, and are engaged in the retail sale of groceries at Park Edge McKinley. (6) Harry Benatovich, Samuel Benatovich, Louis Benatovich, and Hyman Benatovich are copartners doing business under the trade name and style of Bena- tovich Bros. and are 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. (7) 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 are engaged in the retail sale of groceries at Park Edge McKinley. Based upon the Regional Director's finding on this point in his Direction of Elec- tion in Case No. 3-RC-2957, dated November 7, 1962, and the subsequent refusal of the Board to review said decision and direction, the Trial Examiner finds, as alleged in the complaint, that Park Edge Sheridan Meats, Inc.; Park Edge McKinley Meats, Inc.; Park Edge Super Markets, Produce Division; Park Edge Super Markets, Grocery Division; Park Edge Groceries; and Benatovich Bros. constitute a single integrated business enterprise. Herein they are referred to as the Respondent. During the 12 months before issuance of the complaint the Respondent sold and distributed food products valued at more than $500,000. During the same period it caused to be purchased and transported to its place of business, directly from States other than the State of New York, food products valued at more than $50,000. It is concluded and found that the Respondent is engaged in commerce within the meaning of the Act. II. THE CHARGING UNION • Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and issues The events placed in issue both by the complaint and the objections to a Board- conducted election are alleged to have occurred during a period from June 1962 until shortly after the December election. The Trial Examiner notes, as properly requested by General Counsel, as relevant background these facts: (1) On June 19, 1962, Trial Examiner Maher issued an Intermediate Report in Case No. 3-CA- 1676, involving the same parties, in which he found that the Respondent had violated Section 8(a)(1), (2), and (3) of the Act; and (2) on November 2, 1962, the Board issued its Decision and Order in which it adopted, in all major respects, the Trial Examiner's findings and conclusions. It appears that all of the unlawful conduct found by the Trial Examiner and the Board in that case occurred on and after June 1961, a period which scarcely may be held remote to the events herein alleged. The chief issue before this Trial Examiner is the admitted discharge of Andrew Rodeghiero, an employee obviously well known to the employer as a union leader, since he was the picket captain in a strike against the Respondent begun in June 1961 and ending in early September of the same year. Concurrent issues are a few incidents of alleged interference, restraint, and coercion. B. The discharge of Rodeghiero There is no question but that this individual, who had been a butcher for the Respondent since 1960, was summarily discharged by Samuel Benatovich on November 5, 1962, and that the reason given by Benatovich both at the time of the dismissal and at the hearing was, in essential substance, the fact that during Rodeghiero's absence of a few days information had come to management officials of the employee's conviction of a crime some years earlier. Rodeghiero did not deny the fact of conviction. He was given the choice of resigning or being dis- missed, and chose the latter alternative. In substance, it is the Respondent's position that the employee was let go because the nature of the conviction-second degree assault-created a situation wherein Rodeghiero appeared to management to be a potentially dangerous employee, since his duties required the use of knives. PARK EDGE SHERIDAN MEATS, INC., ETC. 299 General Counsel makes no claim that any member of management had previous knowledge of Rodeghiero's conviction and so, by implication, had condoned it. It is his contention, in effect, that the Respondent used the fact of the conviction as a mere pretext for the discharge, while the real reason was management's resolu- tion to'rid itself of a union leader. Certain facts, not in serious dispute, appear to lend support to General Counsel's claim of pretext and, in any event, establish that management was aware of, and resented, the employee's continuing activity on behalf of Local 34. These facts include: (1) In mid-September 1962 the employee was called into the office of Hyman Benatovich who said that he had received complaints from other employees and warned him about any more "union talking on company premises"-according to Rodeghiero, or, as Benatovich testified, "disturb[ing] the other people." (2) Early in October, Hyman Benatovich told Rodeghiero that a "couple of girls" had "made statements" against him, and that he could fire him for it. Rodeghiero, according to his own testimony, challenged him to do so, but he was not then discharged. (As a witness, Benatovich said he could not recall this incident.) (1) On October 19 Rodeghiero was 'a union witness at a Board-conducted pre- election hearing in Case No. 3-RC-2957, herein involved. Respondent officials were present at the hearing. (4) On October 23 the employee was again called into the office by Hyman Bena- tovich. Two employees, Hazel Bauman and D. Cartonia, were there. When Rodeghiero came in, Benatovich turned to the girls and told them to "speak up," according to Rodeghiero, and "All right, girls, now what happened," according to Benatovich. According to Rodeghiero, Bauman merely claimed he had said some- thing to her about an election coming up soon, whereupon he had "called her a liar," and the other girl complained that he had called her a "rebel," whereupon he admitted the fact but said he had done so because she had thrown a piece of meat at him while he held a sharp knife in his hand. According to Benatovich the girls accused Rodeghiero of calling them "rebels" and "rats," whereupon he merely reprimanded him-"A man your age to carry on like this; you are here to put out work." The Trial Examiner is inclined to accept Benatovich's account as the more credible. It is readily inferable that Bauman, at least, was viewed by Rodeghiero as a "rebel." As found in the cited Board decision, she was found to have been unlawfully discharged in June 1961 because of her union activity. And since even Rodeghiero's testimony supports that of Benatovich to the effect that Bauman had brought in a complaint against him, the present union leader, it seems reasonable to consider that her allegiance to the Union had somehow slipped by the wayside.' Neither Bauman nor the other employee was called as a witness by any party. In summary, management became aware of Rodeghiero's conviction for a crime committed some years earlier under the following cricumstances. Rodeghiero did not report for work the morning of October 31. According to his testimony he then had "intestinal flu," although also from his testimony it does not appear that he called a doctor until the next day, November 1. He had his wife telephone the store to report that he would not be in, and then went to the county building to transact some personal business. While there he met, spoke to, and was greeted in reply by Steven Berg, son-in-law of one of the Benatovich brothers and at the time as assistant district attorney in the local county. According to Berg, as a witness, he inquired from a fellow attorney, nearby at the time, who it was who had just spoken to him. This attorney said he ought to know, since he was a "well-known" criminal, involved in some murder or shooting and "was a numbers or policy man." Berg obtained from this attorney Rodeghiero's name, according to his testimony, and proceeded to search the files in the district attorney's office, where he found "cer- tain convictions." As he came downstairs, he said, "It hit me like a ton of bricks as to who this man was. Previous to this time I had not recognized him as being employed at Park Edge or being a witness at this hearing." So he then called his father-in-law, Samuel Benatovich, and reported what he had found in the records 1 The Trial Examiner does not credit Rodeghiero's additional testimony to the effect that Benatovich told him, upon his denial of the girls' accusations, that he was lying then and had "lied all through the hearing." Had Benatovich felt that the employee had lied at the R-proceeding, it is unreasonable to believe that he would have waited several days for an unrelated circumstance to voice his opinion. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by way of criminal convictions, and later ordered from the police a copy of Rodeghiero's "mug shot," which he delivered to Benatovich.2 As previously noted when Rodeghiero finally reported for work on November 5, he was summoned to the office, where Samuel Benatovich confronted him with his "mug shot," told him he had to "protect" his "people," according to Rodeghiero's own testimony, and gave him the choice of resigning or being dismissed. He declined to leave voluntarily and was discharged. Despite the not inconsiderable suspicion which follows reasonably from above- noted facts, including the prior unfair labor practices found by another Trial Examiner and the Board, the Trial Examiner is unable to conclude that General Counsel has sustained his burden of proving that, in fact, the employee was dis- charged unlawfully in order to discourage union activities or because he was a wit- ness at a Board hearing. According to Rodeghiero's own testimony, had the em- ployer merely been seeking a "pretext" to fire him, the opportunity had been created by the employee himself when he boldly challenged Hyman Benatovich to discharge him, following complaints from other employees. To the Trial Ex- aminer it seems reasonable to believe that the Respondent officials, having within the previous few days been informed of the Board 's Order against them, would have been extremely careful to avoid even the appearance of "pretext." And it is undisputed that they did not take the final action until after consulting counsel. Under the circumstances, it will be recommended that the complaint be dis- missed as to Rodeghiero's discharge? C. Interference, restraint, and coercion Although a considerable number of violations of Section 8(a)(1) were found by the Board to have occurred during the Union's organizing campaign in 1961, the record in the instant case contains evidence only as to a comparatively few alleged instances of such conduct. In the main they will be considered chrono- logically, omitting those items relating to Rodeghiero already discussed. Employee John Bartel testified that in the "middle of June" Meat Manager Kostecki, at a tavern near their place of work, asked him if he had "signed a card." When he replied that he had not, but "would go along with the majority," Kostecki advised him, he said, "not [to] sign anything until his name was at the head of the list." Another employee, Frank Gedra, testified that also in June, when he had gone into the office of Hyman Benatovich with Kostecki, the latter said, "They were talking about the Union starting up again," and claimed that either Benatovich or Kostecki in effect told him they could "do something for him" if he "let" them "know what is going on in the Union." The Trial Examiner can place small reliance upon Gedra's testimony as to the incident he described, since early in his account he declared ". . . we went on to talk about-I can't recall what we talked about, but- let's see." Furthermore, according to Rodeghiero's testimony it was not until the "middle of July" that he "contacted" the Union, distributed new cards, and obtained signatures upon them. There being no credible evidence of organizational efforts in June, the Trial Examiner is unable to believe that either Bartel or Gedra was questioned about it by any management representative on the occasions described by them. Bartel also testified that in mid-September Kostecki told him he had "heard" he had "signed" a card. As a witness Kostecki said he did not recall making this re- mark. Even if made, the remark clearly may not be held to be violative of the act. Also according to Bartel, the day before the Board election, while in the office of Samuel Benatovich on another matter , this official told him that he knew where he had been the night before-at the union party. As Bartel left the office, "a little angry" he said, because Benatovich had implied that while liquor flowed at the union party the one held by the "Benatoviches" had been "respectable," the 2 The Trial Examiner discerns no reason to doubt any of the essential details of the "discovery" related by Berg, except as to the precise moment he was hit by the ton of bricks Young as he was as an assistant district attorney , it is hardly reasonable to be- lieve that, upon being informed of a criminal record of a man who had simply said "Hi" to him, he should have dashed to the office to look up the records , and only then have remembered that he had seen him a few days before when both attended the R case bearing. 3 While not determinative, of course, the Trial Examiner notes that his conclusion is in accordance with that of the Regional Director who, after investigation of the charge relat- ing to this employee, declined to issue a complaint until overruled by General Counsel. PARK EDGE SHERIDAN MEATS, INC., ETC. 301 official remarked, "Well, I know what you are going to do tomorrow. You are going to vote Union." Benatovich admitted the occasion but declared that it was "ridiculous" that he should have been accused of referring to. the union party. He denied saying anything to Bartel about his voting for the Union, volunteering as a reason for such demal the claim that the employee "was not eligible to vote" be- cause he was then employed at a store not involved in the election. The Trial Examiner does not believe the denials-Benatovich was altogether too ready to veil them with explanations, and on cross-examination admitted that Bartel in fact voted at the election and that his eligibility only arose upon challenge. However, the Trial Examiner does not conclude that the remarks credibly attributed to him by Bartel constituted interference, restraint, or coercion. They lack either ex- plicit or implicit threat. Also just before the election, according to Gedra, whose testimony concerning an earlier event has not been credited, Meat Manager Kostecki took him and an- other employee to dinner. After the meal Kostecki told the two, according to Gedra, that he wanted to know "who is going to be with him, because we have to beat this thing and we don't need a Union there." Also according to Gedra, Kostecki termed them "foolish, a bunch of dummies." It appears that the three then had words, Gedra got mad, and left. Kostecki admitted the occasion, and at first said he did not remember any discussion "about union activities." Not until pressed by counsel for the Respondent did the manager state: "I didn't discuss any Union activities with no one." The Trial Examiner credits Gedra as to this item, but does not consider that the manager's mere statement that he wanted to know who was "with him," absent circumstances not present here , to be more than a minor infraction of the Act. Finally, there is a good deal of contradictory testimony in the record from Gedra and Berg, the young attorney previously referred to, as to what occurred between the two at the Company's "party" just before the election. The one point upon which both were in near agreement is that they spent a good deal of time at the bar that night, together. Gedra claimed it was "several hours," and that they had "several drinks." Berg said he bought "a few drinks" for Gedra at the bar and "also purchased various drinks" for someone who had been identified as "Mr. Gedra's girl friend." Before this, Berg said, "there had been a lot of drinks," and he had even "related a joke." The Trial Examiner is convinced that neither Gedra nor Berg, as witnesses, had more than a distorted and befuddled recollection of what had been said by either, on that occasion. Their testimony warrants no find- ing, except that they were there drinking for a considerable period. Following the election there is evidence that Berg, conceded by the Respondent to have then been acting as its agent, interviewed employees who had participated in the election concerning matters relevant to the challenges at the election. The single incident which might be considered as exceeding the "free speech" limita- tions, is found in the testimony of employee Folvarcik, a union observer at the elec- tion. She claimed that during her interview Berg asked her if employee Jakubscak was "Union." The Trial Examiner credits her, not Berg's denial. Since the query obviously arose during a discussion involving speculation as to whether the Union or the Company had won the election, the Trial Examiner cannot conclude that it violated the Act. D. Conclusions The Trial Examiner concludes and finds: (1) The preponderance of credible evidence fails to sustain allegations in the complaint of the Respondent's violation of Section 8(a)(1), (3), and (4) of the Act. (2) The preponderance of credible evidence fails to sustain the only two objec- tions to the election, placed in issue in the RC case.4 RECOMMENDATIONS Upon the foregoing findings of fact and conclusions of law , and upon the entire record in the case, the Trial Examiner recommends that the complaint in Cases Nos. 3-CA-1971 and 3-CA-1996 be dismissed in its entirety, and that the objec- tions to the election raised as issues in Case No. 3-RC-2957 be overruled. 4 Only objections Nos. 1 and 9 are in issue . Objection No. 1 in substance alleges that before the election the Respondent's representatives "attempted to intimidate or coerce certain of their employees" and unlawfully discharged Rodeghiero, Objection No 9 contends that the company representatives "interfered with, restrained and coerced" employees.