Avenue Meat Center

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Solomon Johnsky d/b/a Avenue Meat Center and Food Handlers Union Local 371, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 1-CA-6282 August 4, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND MCCULLOCH On December 13, 1968, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a supporting brief and Respondent filed a reply brief to the General Coun- sel's exceptions. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner but only to the extent consistent herewith. The record shows that Respondent, prior to March 19, 1968, operated a meat market under the name Majestic Meat Center in Bristol, Connecticut, and that on or about March 19, 1968, Respondent purchased from Home Meat Center of Bristol, Inc. (herein called Home), the furniture, fixtures, equip- ment, and merchandise inventory as well as the lease to the store premises. Thereafter, Respondent continued the operation of the Home meat market at the same location under the name Avenue Meat Center. ' It was stipulated at the hearing that the unit consists of -all mcatcutters, countermen , counterwomen, apprentice meatcutters , apprentice counter- men, cashiers , part-time countermen, part -time cashiers and part-time hel- pers of Home Meat Center of Bristol, Inc , excluding office clerical em- ployees, professional employees, guards , and supervisors or supervisory The General Counsel contends that Avenue is a successor to Home and that, as such, is bound by the collective-bargaining agreement in existence between Home and the Union at the time Respon- dent took over Home's operation. The Trial Ex- aminer found it unnecessary to determine whether Respondent was a successor to Home, finding rather that because Home's labor agreement with the Union encompassed a multiemployer four-store unit, the contract in question could not be applied to Respondent 's single-store unit at Avenue. For the reasons stated hereinafter, we agree with the General Counsel. The record shows that when Respondent commenced operations at Home on March 19, 1968, it performed the same operations as had Home before, and with a majority of Home's former employees. The same business facilities are being used, and the employees, with minor modifi- cations, were working under the same working con- ditions and were providing the same services as heretofore provided by Home. Thus, Respondent's taking over of the Home operations constituted no change in the "employing industry." In such cir- cumstances, Respondent clearly was a successor employer of the Home Meat Center of Bristol, Inc., with respect to the stipulated unit' and as such had a duty to honor its employees' choice of a bargain- ing representative.2 For the reasons enunciated in our decision in William J. Burns International Detective Agency, Inc.,' we find that Respondent, as the successor em- ployer in a continuing business entity, had an obligation to honor the collective-bargaining agree- ment in effect at the time it took over the employ- ing enterprise. From the record, it is clear that dur- ing the course of negotiations with Kass, one of the former owners of Home, Respondent was advised that Home's employees were represented by the Union and that there was a collective-bargaining agreement in existence at the time covering Home's employees. In reaching our conclusion herein, we do not ac- cept the Trial Examiner's rationale relating to the multiemployer character of the unit involved in the collective-bargaining agreement and its inapplica- bility to Respondent's single-store operation. It is true that the contract was executed by several closely interrelated employers, but this record affir- matively shows that a separate unit of Avenue em- ployees is appropriate. The record also indicates that the contract here substantially recognizes the separate identities of the four stores, and there does employees as defined in the Act 11 2 Maintenance, Incorporated, 148 NLRB 1299, Valleydale Packers, Inc , ofBrtstol, 162 NLRB 1486 3 182 NLRB 348 184 NLRB No. 94 AVENUE MEAT CENTER not appear to be any administrative impediment to the application of the basic contract terms dealing with wages, hours, and conditions of employment to the employees in that unit. Accordingly, we find that by refusing to honor the contract between Home and the Union, Respondent has refused to bargain in violation of Section 8(a)(5) and (1) of the Act since on or about March 19, 1968. We further find that Respondent, independent of its refusal to honor the contract, violated Section 8(a)(5) and (1) of the Act when Respondent refused to recognize the Union as the representa- tive of Respondent's employees.' Upon the foregoing findings of fact and the entire record in this case, including the Trial Examiner's findings of fact, we make the following: CONCLUSIONS OF LAW 1. Respondent and Home Meat Center of Bristol , Inc., are employers engaged in commerce within the meaning of the Act. 2. Food Handlers Union Local 371, Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of the Act. 3. All meatcutters, countermen, counterwomen, apprentice meatcutters, apprentice countermen, cashiers, part-time countermen, part-time cashiers, and part-time helpers of Respondent's Avenue store, excluding office clerical employees, profes- sional employees, guards, and supervisors or super- visory employees as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. By failing and refusing on March 21, 1968, and thereafter, to recognize and bargain with the Union as the exclusive bargaining representative of Respondent's employees in the above-described ap- propriate unit and by failing to honor and adopt and enforce the existing contract between Home and the Union, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. 5. By unilaterally withholding benefits, abolish- ing the coffeebreaks, discontinuing health and life insurance arrangements, and eliminating sick leave and birthday leave, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By interrogating employees regarding their union activity and their relationships with the 827 Union and by telling employees they could either work for Respondent or belong to the Union, Respondent 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 within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (5) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union is the bargaining representative of Respondent's employees in an ap- propriate unit and that its request for recognition and bargaining was unlawfully refused by Respon- dent, we shall order that Respondent bargain, upon request,. with the Union and if any understanding is reached embody such understanding in a signed agreement. Having further found that Respondent, in viola- tion of Section 8(a)(5), failed to honor the collec- tive-bargaining agreement in effect at the time of its takeover, we shall further order that, upon request by the Union, the Respondent shall make restitu- tion of all contractual benefits which it may have unlawfully withheld from employees by virtue of its failure to abide by the provisions of the collective- bargaining agreement during its scheduled term. We shall also require that the Respondent make restitution of benefits which may have been lost by employees in the appropriate unit by virtue of any additional unilateral changes it may have instituted in the terms and conditions of employment existing at the expiration of the contract. The latter form of restitution is applicable from the expiration date of the contract. Whatever monetary restitution Respondent's employees may be entitled to shall be computed in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289, and shall include interest in the amount and manner set forth in Isis Plumbing and Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, Solomon Johnsky d/b/a Avenue Meat Center, 4 The record clearly shows that when Respondent was approached by the union representative on March 21 , 1968, Respondent refused to have anything to do with him and asked "who needs you " 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bristol , Connecticut, his agents , successors , and as- APPENDIX signs, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union membership or activities. (b) Threatening to discharge employees if they continue their union membership. (c) Refusing to bargain collectively, upon request, with the Union as the exclusive bargaining representative of its employees in the above- described unit. (d) Refusing , as successor of Home, to adopt, honor , and enforce its contract with the Union. (e) Interfering with representation of his em- ployees through labor organizations of their own choosing. (f) In any like or related manner interfering with , restraining , or coercing his employees in the exercise of their rights to join or assist the Union or otherwise engage in activities protected by the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Bargain collectively, upon request, with the Union and, if any understanding is reached, em- body such understanding in a signed agreement. (b) Make restitution of all contractual benefits which Respondent may have unlawfully withheld from employees, by virtue of his failure to abide by the provisions of the collective-bargaining agree- ment in effect at the time of his acquisition of the employing enterprise involved herein, in the manner set forth in the portion of this decision enti- tled "The Remedy." (c) Make restitution for any benefits which may have been lost by virtue of any unilateral changes he may have instituted in the terms and conditions of employment existing at the expiration of the con- tract in the manner set forth in the portion of this decision entitled "The Remedy." (d) Post at its Avenue Meat Center store in Bristol , Connecticut, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by him for 60 consecu- tive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by him to insure that said notices are not altered, defaced, or covered by any other material. NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government I WILL NOT question you concerning your union membership or union activities. I WILL NOT threaten you that you will be discharged unless you quit the Union. I WILL NOT refuse to bargain collectively with Food Handlers Union Local 371, Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO. I WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the ex- ercise of your rights to self-organization, to form, join, or assist any labor organization, to bargain collectively concerning terms or condi- tions of employment through the representa- tive you select, or to refrain from any of these activities if you so choose, except to the extent that these rights may be affected by a contract validly made under the National Labor Rela- tions Act, whereby membership in a labor or- ganization is a condition of employment after the 30th day following the date of the contract or the beginning of a person's employment, whichever is later. I WILL bargain collectively, upon request, with this Union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an un- derstanding is reached, embody such un- derstanding in a signed agreement. The bar- gaining unit is: All meatcutters, countermen, counter- women, apprentice meatcutters, ap- prentice countermen, cashiers, part-time countermen, part-time cashiers and part- time helpers of my Avenue store, exclud- ing office clerical employees, professional employees, guards, and supervisors or su- pervisory employees as defined in the Act. I WILL make restitution of all contractual 5 In the event that this Order is enforced by a Judgment of a United Pursuant to a Judgment of the United States Court of Appeals Enforcing an States Court of Appeals , the words in the notice reading "Posted by Order Order of the National Labor Relations Board of the National Labor Relations Board " shall be changed to read "Posted AVENUE MEAT CENTER benefits which I may have unlawfully withheld by virtue of my failure to abide by the collec- tive-bargaining agreement in effect at the time I acquired control of the sore. I WILL also make restitution for any benefits which may have been lost because of any uni- lateral changes I may have instituted in the terms and conditions of employment existing at the expiration of the contract. You and all of my employees are free to become or remain, or to refrain from becoming members or withdrawing membership in any labor organization. Dated By SOLOMON JOHNSKY D/B/A AVENUE MEAT CENTER (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 20th Floor, John F. Kennedy Federal Building, Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 617-223-3300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER , Trial Examiner: Upon a charge and an amendment thereto filed on April 2 and 23 , 1968, respectively , by Food Handlers Union Local 371, Amalgamated Meat Cutters and. Butcher Workmen of North America , AFL-CIO, herein referred to as the Union, the Regional Director for Region 1 of the National Labor Rela- tions Board , herein called the Board , on May 14, 1968, issued a complaint on behalf of the General Counsel of the Board against Solomon Johnsky d/b/a Avenue Meat Center , Respondent herein, al- leging violations of Section 8(a)(I ), (3), and (5) of ' I have considered the testimony of all witnesses, including those whose testimony 1 neither accept nor refer to In evaluating the testimony of each witness I have specifically considered his demeanor and have made my findings accordingly Apart from considerations of demeanor I have taken into consideration inconsistencies and conflicting evidence If, in any specific instance, 1 have failed either to detail resolutions of conflicts or to have analyzed specific testimony it is for the reason that, in my judgment, this Decision would only be to that extent encumbered, and no advantage 829 the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq. ), herein called the Act. In his duly filed answer, Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in Bristol, Connecticut, where all parties were present, represented, and afforded a full opportunity to be heard, present oral arguments, and file briefs with me. Briefs were filed on July 10, 1968. Upon consideration of the entire record, includ- ing the briefs of the parties, and specifically upon my observation of each witness appearing before me,' I make the following. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Respondent Solomon Johnsky is an individual doing business as Avenue Meat Center and main- tains his principal place of business on Farmington Avenue, Bristol, Connecticut, where he is engaged in the retail sale of meats and related products. This enterprise will be referred to hereafter as Avenue. Johnsky is also the proprietor of an enterprise known as Solomon Johnsky doing business as Majestic Meat Center with its principal place of business on Park Street, Bristol, Connecticut, where it too is engaged in the retail sale of meats and related products. This enterprise will be referred to hereinafter as Majestic. In the course and conduct of the operations of these two enterprises Johnsky exercises active, con- tinuing , and direct control over each, including the purchase of goods and supplies, sales to customers, the hiring of personnel, and the general assumption of administrative responsibility, including the for- mulation of a common labor policy.' I accordingly conclude and find that Avenue and Majestic con- stitute a single integrated business enterprise for all purposes herein.' Prior to March 19, 1968, the premises on Farmington Avenue, presently known as Avenue, was one of several stores owned by Phillip Kass, this particular one being identified as Home Meat Center of Bristol, Inc.,4 and hereinafter referred to as Home-Bristol. By bill of sale dated March 18, Kass sold to Johnsky the furniture, fixtures, equip- ment, and merchandise inventory of Home-Bristol. Johnsky credibly testified, however, and there is no indication to the contrary, that the goodwill or ac- counts receivable of Home-Bristol comprised no part of the sale. Thereafter, on March 19, at the to the understanding of my findings would be served Bishop and Ma/co, Inc, 159 NLRB 1159, 1161 The uncontradicted testimony of Solomon Johnsky Overton Markets, Inc, 142 NLRB 615 4 The other affiliated stores were Home Meat Center Inc , located in Me- riden , Connecticut , Home Meat Center of Wallingford , Inc , and Home Meat Center of Plainville, Inc 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD premises previously identified as Home-Bristol, Respondent Solomon Johnsky d/b/a Avenue Meat Center commenced the new operations as described above. Records submitted in evidence disclose the na- ture and volume of business of both Majestic and Home-Bristol, the predecessor of Avenue, during 1967, the most recent 12-month period for which data is available. While there is in the record some 1968 data for Majestic as well as for Avenue under its new ownership, these figures could only provide meaningful current business positions for the respective stores by use of projections. For the calendar year 1967, however, actual gross revenue figures are available for Majestic and for Home- Bristol , the predecessor of Avenue. As there is no appreciable difference between the operation of Home-Bristol under Kass and of Avenue under Johnsky, and because a use of the 1967 Home- Bristol figures constitute complete fiscal informa- tion for a definite and current period that would be applicable to Avenue, I shall rely upon the figures for the calendar year of 1967 submitted for the respective stores. These reveal that Home-Bristol, the predecessor of Avenue, in the course and con- duct of its business operations, sold and distributed during 1967 at its Farmington Avenue store meats and related products the gross value of which was stipulated by the parties to be $388,156.33. During the same period Majestic, the store which I have found to have been operated with Avenue as a sin- gle integrated business enterprise, in the course and conduct of its business operations, sold and dis- tributed meats and related products the gross value of which, according to submissions to the Internal Revenue Service, was $148,714.95. Accordingly, in the year 1967 the aforementioned single integrated retail business establishment did a total annual gross volume of business amounting to $536,871.28. With respect to the origin of the goods thus sold and distributed Phillip Kass, the then owner of Home-Bristol, credibly testified that during the year 1967 Home-Bristol received meats and related products valued in excess of $50,000 transported to its Farmington Avenue store in in- terstate commerce indirectly from States of the United States other than the State of Connecticut. There is no evidence in the record that since March 18, 1968, Avenue has in any manner changed this method of purchase of meat products. During the year 1968, the same annual period, it is stipulated that Majestic received meats and related products valued in excess of $50,000 transported to its Park Street store in interstate commerce indirectly from States of the United States other than the State of Connecticut. Upon the foregoing stipulated and credited evidence I conclude and find that Avenue and Majestic are a single integrated retail enterprise and that Solomon Johnsky d/b/a Avenue Meat Center, one of the components of this operation, is an employer engaged in commerce within the meaning of Section 2(5) of the Act.' II. THE LABOR ORGANIZATION It is stipulated among the parties and I conclude and find that Food Handlers Union Local 371, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. The unit appropriate for collective bargaining in retail establishments is found to be a single in- tegrated business. 2. The applicability of a collective agreement covering a multistore unit upon the sale of one store's fixtures and inventory to a presently going retail operation. 3. The failure to employ employees of a predecessor as discrimination. 4. Insubordination as grounds for discharge. 5. Withdrawal of benefits provided in contract with predecessor as interference, restraint, and coercion. 6. Interrogation and threats as interference, restraint, and coercion. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For some time Solomon Johnsky owned a corner meat market, Majestic Meat Center, in Bristol, Connecticut, which he operated with two em- ployees, one of whom was his son. For a period in 1967 his wife, Jenny, also worked there, as did his daughter, Rose. In March 1968, as previously described, Johnsky added to his holdings, purchas- ing the equipment and merchandise stock of Home- Bristol from Phillip Kass, the owner of three other stores. Neither the goodwill nor the accounts receivable were part of this transaction. Home-Bristol was one of four meat markers owned by Kass and a recently deceased partner. The markets were located in the neighboring Con- necticut communities of Bristol, Plainville, Me- riden, and Wallingford, none being more than 10 or 15 miles distant from the other in Hartford and New Haven Counties. The employees of these mar- kets were members of and represented by the Union which had an exclusive collective agreement with the several markets, referred to in the contract as "the Employers," effective until October 3 1, 1968, and including among other provisions union- security clauses requiring union dues checkoff and union membership on and after 30 days' employ- 5 Carolina Supplies and Cement Co , 122 NLRB 88, Overton Markets, inc , supra AVENUE MEAT CENTER 831 ment as a condition of continuing employment. The bargaining unit covered by this contract "comprises the employees of the Employers who are described by job classification in Appendix No. 2," with the usual clerical and supervisory exclusions, the ap- pendix being a list of the job classifications and wage rates at all four stores. The jobs included were meatcutter, counterman, counterwoman, ap- prentice meatcutter, counterman, cashier, and part- time counterman, cashier, and helper. Notwithstanding the unit spelled out in the con- tract there appears in the record a stipulation as to the appropriate bargaining unit which purports to clarify paragraph 10 of the complaint. Paragraph 10 originally alleged the appropriate unit as follows: All meatcutters, countermen, counterwomen, apprentice meatcutters, apprentice counter- men, cashiers, part-time countermen, part-time cashiers, and part-time helpers, excluding of- fice clerical employees, professional em- ployees, guards, and supervisory employees, as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. The "clarifying" stipulation, however, reads in rele- vant part as follows: All meatcutters, countermen, counterwomen, apprentice meatcutters, apprentice counter- men, cashiers, part-time countermen, part-time cashiers and part-time helpers of Home Meat Center of Bristol, Inc., excluding office clerical employees, professional employees, guards, and supervisors or supervisory employees as defined in the Act constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. As neither the paragraph as originally alleged nor the stipulation clarifying it by adding the name Home Meat Center bear resemblance to the unit agreed upon by the parties to the contract which was also stipulated into the record, I shall rely ex- clusively upon the unit description of the contract in evidence in my determinations herein. Moreover, the Union's attorney in a letter advising the union president of the Home-Bristol sale described the unit "ours being a multi-employer bargaining." Contrary to General Counsel's contention the con- tract contains no provision relating to the closing of any of the stores or its applicability to such a situa- tion. Following the disposal of Home-Bristol, Kass continued to operate the remaining three markets under the contract. B. The Transfer of the Store from Kass to Johnsky During the negotiations which culminated in the sale of Home-Bristol, Johnsky was apprised of the contract with the Union, given a copy of it, and on several occasions discussed various benefits with Kass.' During the final negotiations Johnsky asked Kass to announce to the employees that they were through and to give each of them the blue termina- tion slip required by the Connecticut unemploy- ment office. Kass demurred, stating that under the union contract he had no basis for terminating them. Johnsky repeated his request several times thereafter and each time Kass temporized, and not until his leavetaking did he inform his employees of the reasons for disposing of the store and tell them that Johnsky would be taking over during the next week. He instructed them "to come to work Tuesday morning." C. The Termination of Ellen Michaud and Agnes Preslopsky All former employees of Home-Bristol, with two exceptions, were hired at Avenue. Ellen Michaud and Agnes Preslopsky had been employed by Home-Bristol for 2 years and 7 years, respectively. They reported for work on Tuesday morning, March 19, and were met by Johnsky, the new owner. According to Mrs. Michaud, a counter girl and part-time cashier, Johnsky told her that he was going to give her a little rest and that she could "go home for a while." He then asked her and her husband, employee Edward Michaud, if there were any hard feelings and each replied that there were not. Mrs. Michaud then left the premises and has not since returned to work. Significantly she has returned to the store on a number of occasions thereafter "to buy groceries, meats " On of of these visits Johnsky and Mrs. Michaud discussed the rela- tive sales merits of various delicatessen items and Johnsky, at one point stated, "Well Ellen, if you go along with me we'll grow together." The record, however, contains no elaboration of this remark, nor was she ever thereafter employed at the store. When Agnes Preslopsky, cashier at Home- Bristol, reported for work on the same Tuesday, Johnsky met her at the timeclock and told her that he did not need her. Mrs. Preslopsky remonstrated with Johnsky, telling him she thought "it was a ratty thing to do," and left the premises. She has not since returned. After their encounters with Johnsky both ladies then sought out their former employer, Kass, and each impressed upon him the economic necessity of receiving termination slips. Although previously reluctant to accede to Johnsky's request in this matter, Kass, after receiving a call from an official of the local unemployment office in behalf of Mrs. Michaud, gave slips to both her and Agnes Preslop- sky on March 19. In his earlier discussions with Kass, and thereafter, when he met Ellen Michaud and Agnes Preslopsky on March 19, it was Johnsky's position G The testimony of Kass and Johnsky I do not accept Johnsky's denial that he discussed benefits with Kass In any event it is apparent that he was aware of existing benefits, having admittedly discussed hospitalization with his own attorney 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they were not his employees but Kass', and that he had plans of his own for staffing his store Employee John McGann, a witness called by the General Counsel, lent support to this, testifying that Rose Fillen, Johnsky's daughter, took over the cashier duties which Mrs. Preslopsky had per- formed with Home-Bristol. Although she had planned to work until June, Johnsky's daughter held this job for only 2 weeks, leaving as a con- sequence of her accelerated pregnancy. She was replaced on April 7 by Marlene Aldeo who con- tinues to work at Avenue as a cashier Johnsky assigned no one to take the place of Mrs. Michaud, believing that his staff would be adequate to do the necessary counter work. His son-in-law, Robert Fillen, helps out on Saturdays, however, sometimes at the Avenue store and other times at Majestic. Similarly, his son, Daniel, who manages the Majestic store, frequently helps out at the Avenue store for several hours during the even- ing after he has closed the Majestic store. Mrs. Johnsky has seldom worked at Avenue nor does she presently work at Majestic. Prior to the acquisition of Avenue, during 1967, she had worked at Majestic as a cashier. D. The Discharge of Edmond Michaud Among the Home-Bristol employees whom John- sky put to work when they reported at Avenue on March 19 was Edmond Michaud, an experienced meatcutter and member of the Union. Michaud was understandably irked at Johnsky for having refused to hire his wife, Ellen, and on several occasions told him so. In fact at the very beginning he pointed out that they needed the money and wanted the matter of her termination slip for unemployment settled. It was the practice of the meatcutters preparing the meat for sale to cut an accumulation and store in the refrigerator what had been cut. Then as need for meat arises in the store it is taken from the refrigerator and placed in the display cases. On a number of occasions, according to Johnsky, whom I credit, he asked Michaud to bring the cut meats from the refrigerator to the display counter for sale. Michaud, presumably following the practice of his former employment at Home-Bristol, objected to this request but compromised by taking the meats from the refrigerator and placing them on the rear counter. For this Johnsky reprimanded Michaud telling him that meats could only be sold from the showcases and not from the rear counter or from the refrigerator. The reprimands had no effect on either Michaud's attitude or his efforts to comply. He repeated the practice and each time Johnsky remonstrated. Finally on April 8 during a busy ' This account is the credited testimony of Johnsky who further testified that he was well aware of Michaud'% union membership and had discussed the Union with him I do not credit Michaud's contrary testimony to the ef- fect that his discharge came as a surprise to him and that he knew of no reason for it except his union activity Neither do I credit for any purpose the testimony of employee Charles Jardine I found his testimony con- selling period Johnsky observed that they were running low on meat on several platters in the dis- play case and he called from the store area to Michaud in the backroom to bring out fresh sup- plies of hamburger and pork chops. Michaud replied, "Get it yourself," and pointed to the refrigerator. There were customers and other em- ployees present who witnessed what Johnsky referred to as "his embarassment." On the follow- ing morning Johnsky called Michaud at his home and told him his services were no longer required and directed him to report for his pay. Johnsky as- serted that he discharged Michaud solely for his at- titude and insubordination.' E. Johnsky and the Union During the course of events detailed to this point, references to the Union frequently appeared. John- sky, as was his privilege, was opposed to the Union. When negotiating the purchase of the store with Kass he obtained a copy of the contract and discussed with him its contents as it applied to Kass' employees. Thereafter when he had assumed ownership of the store Johnsky became more posi- tive in his attitude. Several days after he had assumed ownership Johnsky engaged employee John McGann in con- versation. He told him that "nothing would change," that he did not want him to continue in the Union, that he would not withhold union dues as had been done previously by Kass, and that if a union representative appeared he did not want the employees to pay him. In fact, Johnsky told Mc- Gann he could either work there or be a member of the Union.' In a conversation with employee Fran- cis Bayer on the same day Johnsky repeated what he had told McGann, giving him the same alterna- tive of working or quitting the Union.9 Both em- ployees voluntarily quit, Bayer on the following day and McGann a month later. At this point it should be noted that not only had Home-Bristol had a collective agreement with the Union but all of its employees, at the time of the sale to Johnsky, were union members whose dues were being deducted by Kass pursuant to individual authorizations and the terms of the agreement. Against such a backdrop the Union's business representative, W. Russell Dockins, appeared at the Avenue store on March 21, introduced himself to Johnsky as the Union's representative, and asked him if the former had given him a copy of the con- tract, to which Johnsky replied, "Yes, he did but who needs you?" When Dockins persisted by again referring to the contract and to what he referred to tradictory on numerous significant respects and he impressed me generally as a confused and unreliable witness The credited, undemed testimony of McGann " The credited, undemed testimony of Bayer Edmond Michaud, whom I do not credit generally, testified to a similar conversation with Johnsky and I accept it as further evidence of the fact AVENUE MEAT CENTER 833 as a "successors and assigns clause,"10 Johnsky told him he was not interested and to see his attorney. He closed the encounter by stating that he would spend $50,000 or $60,000 to keep the Union out. There has been no further communication between the Union and Johnsky or their respective attorneys. F. Interference, Restraint, and Coercion Concurrent with the Union's request that John- sky honor its contract with Kass, he became in- volved in a number of incidents relating to the working conditions of his employees which, it is al- leged, stem from rights derived from the contract and which further indicate his unwillingness to bar- gain with the Union. As previously noted, Johnsky told employee Mc- Gann that he was opposed to the Union. Several weeks thereafter, during the midafternoon of March 30, observing that business was slow and that McGann and a fellow worker were cleaning up the store, Johnsky told McGann to go home when McGann asked to take a coffeebreak. Upon Mc- Gann's return to work on April 4 Johnsky asked him if he had gone to the Union. When McGann replied that he had not Johnsky told him he wanted to hear no more about the Union. On the subject of coffeebreaks employee Ed Michaud complained that although a coffee urn had been made available to employees they were not able to take the break but drank the coffee at their work place. Johnsky, when questioned about coffeebreak policy, explained that he purchased a coffee urn for his employees and that they could have coffee anytime they wanted it." Michaud testified that he was required to work on his birthday, whereas previously under the con- tract he was either given the day off or paid double. He neither complained of this to Johnsky at the time nor had he notified Johnsky of the birthday in advance. Johnsky readily conceded that no con- sideration was given to Michaud's or anyone else's birthday, that Michaud never asked for considera- tion , that he was not aware of when Michaud's birthday occurred, and that he had no knowledge of such a prior policy. The Home-Bristol contract included provisions for health benefits and group insurance . Some time after the purchase of the facility by Johnsky, in April, the employees were notified by Blue Cross and Connecticut Medical Service that their coverage was being canceled. Michaud, who testified concerning this, conceded that he never complained to Johnsky of the cancellation. Johnsky testified that a health plan was never in force either at Avenue or Majestic but that employees were provided paid sick leave if they called in. His ver- sion of sick pay was that none was forthcoming until after the first week of an employee's illness. Under this arrangement no sick pay has been granted to employees, none having qualified. Life insurance had been available to employees under the Home-Bristol agreement with the Union. Johnsky testified that he has not maintained a life insurance program for Avenue employees since as- suming ownership. Finally it is alleged that Johnsky interrogated his employees concerning their union affiliation. El- sewhere in these findings it is evident that Johnsky did precisely that, specifically in conversations with employee John McGann. In addition to this he readily conceded that when hiring Marlene Aldeo as a replacement for his daughter whose availability was curtailed for reasons of health he asked her if she belonged to a union. Miss Aldeo confirmed this conversation, adding that when she told him she did not Johnsky remarked to an unidentified individual present at the time, "I don't want them here." G. Contentions General Counsel has taken a number of positions in this matter that, when set forth, clarify the con- clusions which follow. At the outset it is claimed that Johnsky's is a single integrated business, as evidenced by common ownership, common control of personnel, interchange of employees, and identi- ty of operations. Based upon the evidence support- ing these contentions I have already found and con- cluded that Johnsky was an employer over whom the Board would appropriately assert its jurisdic- tion, supra. It is further contended that Avenue Meat Center is the successor of Home-Bristol and that as a consequence the contract previously in force applied to Johnsky at Avenue. The result, so the contentions go, is that the Home-Bristol em- ployees continue as employees of Johnsky, and the contract protects them. Accordingly, it is urged, Johnsky's actions and failures to act which I have detailed above are in derrogation of an outstanding agreement and are as much an unlawful refusal to bargain as was his outright rejection of the business agent's request. Under the foregoing theory advanced by General Counsel, Johnsky's refusal to continue Ellen Michaud's and Agnes Preslopsky's employment would constitute unlawful discrimination. Indepen- 10 The clause to which Dockins refers is in the caption of the agreement wherein the parties to it are identified by name as the Union, the several stores comprising the overall bargaining unit and "their successors and as- signs " The agreement contains no specific reference to its application upon the transfer of a store to a third party " In answer to a question of counsel for the General Counsel Johnsky stated that he permitted two uninterrupted I5-minute coffeebreaks per day Conflicting as it does with the credited testimony of McGann and with Johnsky's own testimony to the effect that work requirements took precedence over coffeebreaks, I do not credit his testimony concerning the 15-minute break In this respect it is to be noted that although I have credited Johnsky generally I do not deem myself obligated to accept such a portion of his testimony as conflicts with the weight of evidence, it being not uncommon "to believe some and not all of a witness' testimony N L R B v Universal Camera Corp , 179 F 2d 749, 754 (C A 2) 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dently it is urged that Edward Michaud was discharged for reasons of union membership and activity and not for insubordination as claimed by Respondent Johnsky. H. Conclusions 1. The alleged refusal to bargain The basic proposition presented by the facts found in this case reduces to whether a collective agreement which covers a group of employees in a multistore bargaining unit may be applied to a totally different bargaining unit; namely, a single store of a new employer. With several minor excep- tions every issue here hinges upon Solomon John- sky's liability under a contract currently in force and effect between the Union and Phillip Kass, the former owner of one of Johnsky's establishments. Avenue Meat Center is a typical neighborhood store manned by the proprietor himself, members of his family, and such additional employees as are required. Majestic Meat Center is an identical establishment operating in the same fashion. From an earlier description of these two stores, the com- mon ownership, the close family ties which bind them together, and the interchange of personnel make it obvious that Johnsky in his capacity as proprietor of each is a joint employer, if such a term can generically describe one individual. Having said this much, even as General Counsel has urged it to establish the Board's jurisdiction, I am now called upon to conclude that Johnsky's operation at Avenue is so separate and distinct as to constitute it a separate bargaining unit. For that is the basic import of the contention that the Union's contract with Home-Bristol follows the fix- tures and inventory. Fortunately I need not confront this obvious con- tradiction. Before reaching that problem we are faced with the more basic ones of whether Johnsky, at Avenue, succeeded to the contractural obliga- tions of Kass, and whether Kass' contract with the Union could apply to employees of the newly purchased store The ideal situation would be one where the purchaser was truly the successor of a single opera- tion. That, unfortunately, is not this case. Johnsky assumed the store lease but bought only the fixtures and inventory, and not the accounts receivable or goodwill. Hence it is questionable whether he would be a successor in the true sense.12 But passing this unresolved issue we come to the one that makes the resolution of the others unnecessa- ry. Although the contract between Kass and the Union establishes what the union attorney correctly described as a multistore unit, it was nevertheless stipulated, as noted above, supra, that the Home- " Cf Tallakson Ford, Inc , 171 NLRB 503 13 it is to be noted that these findings do not relate to the character of Bristol employees alone are an appropriate unit. I refuse to accept a stipulation so completely at vari- ance with operative facts and documents, and I conclude and find the employees in all four stores to be the appropriate bargaining unit as agreed upon. The contract which the Union demanded that Johnsky accept covered a four-store bargaining unit. To sanction such a demand would suggest, in effect, that one segment of a four-store bargaining unit may properly be converted (even in an unestablished successorship situation) to a single- store unit where that single store nonetheless requires the proven integration with another single store to establish the Board's jurisdiction over the matter, in the first instance. Such being the case it is apparent that Johnsky was being asked by the Union to assume bargaining obligations for a seg- ment of a multistore unit. I am aware of no precedent for the proposition, that an employer who resists such a bizarre interpretation of a reasonably clear situation has thereby manifested bad faith sufficient to brand his refusal as unlawful. Accordingly I conclude and find that regardless of successorship considerations the multistore con- tract between the Union and Kass is not applicable to Johnsky's single-store unit at Avenue. And in- deed it is highly questionable whether Avenue could be such an appropriate unit while at the same time it is so integrated with Majestic as to justify the assertion of jurisdiction. For all of the foregoing I would conclude and find that no appropriate unit has been properly established for bargaining purposes. I would there- fore dismiss so much of the complaint as alleges that by his refusal to accept the Union's multistore contract Johnsky refused to bargain in violation of Section 8(a)(5) of the Act. As further instances of unlawful refusal to bar- gain it is alleged, and in fact established by credible evidence, that Johnsky acted unilaterally in deroga- tion of the contract in numerous respects, which in- cluded the withholding of benefits, abolishing of coffeebreaks, discontinuing of health and life in- surance arrangements, and the elimination of sick leave and birthday benefits. These actions by John- sky relate to his refusal or failure to implement the terms of a collective agreement, and it is this agree- ment which I find not applicable to him in the first instance. I therefore conclude and find that he has not thereby refused to bargain in violation of the Act and recommended that so much of the com- plaint as alleges such conduct to be a further viola- tion of Section 8(a)(5) be dismissed.13 2. The failure to hire Ellen Michaud and Agnes Preslopsky Let it be understood at the outset that Johnsky certain of this activity as is found hereafter to be in violation of Section 8(a)(l) See infra AVENUE MEAT CENTER was under no contractual obligation to permit Ellen Michaud or Agnes Preslopsky or anyone else to begin work in his store on March 19, there being no applicable contract. Accordingly, unless it can be established that his motives were grounded in union animus he was perfectly free to hire whom he chose Solomon Johnsky was opposed to a union, as was his privilege, and it was his privilege to say so under Section 8(c) of the Act. It does not follow, how- ever, that simply because he chose to put his daughter to work in place of a union member, and for overall staffing purposes found it unnecessary to hire another one, he was thereby expressing his union antipathy: Nor is their union membership alone a basis for his elimination of these two, because every former Home-Bristol employee was a union member. Something more tangible than this is required. I have searched the record and nowhere do I find any expression by Johnsky of his feelings toward either Mrs. Michaud or Mrs. Preslopsky with rela- tion to their union membership. I do find upon credible evidence that Johnsky reorganized his ex- panded enterprise to accomodate the use of his family members in various spots. Thus on occasion his wife was employed, his daughter was taken on as cashier, his son-in-law worked on Saturdays, and his son, the Majestic manager, worked at Avenue at night. I refuse to view business prudence and family solidarity as a form of antiunion motivation. I there- fore conclude and find that neither Ellen Michaud nor Agnes Preslopsky were refused employment for reasons of their union membership but rather as a consequence of a proper management determina- tion. I would accordingly recommend that so much of the complaint as alleges discrimination against these two individuals be dismissed. 3. The discharge of Edmond Michaud With or without such protection as a collective agreement might afford him Edmond Michaud's behavior when he refused to set out meats as requested, and his retort to Johnsky, "Get it your- self," was insubordination, pure and simple. It is one thing to insist, as Michaud did, that the union contract which he has mistakenly relied upon delineated certain duties and assignments as outside his classification. It is something else, however, to insist upon these rights, even should they have ex- isted here, by publicly embarassing one's employer in the process. The union activity in which Michaud claims to have indulged does not carry with it a license to be a boor. Because the contract had no application here and because Michaud had been previously reprimanded for the same derelictions, I am persuaded that Johnsky's decision to discharge him was not motivated by his union membership or his constant resort to the terms of the contract. On " Continental Motors, Inc , 145 NLRB 1075 835 the contrary I am fully convinced not only by the credited findings but by the inherent realities that Michaud was discharged for refusing to do what he was told to do and for the insulting remarks that ac- companied his refusal. I would accordingly con- clude and find that Michaud's discharge for cause was fully warranted and overdue. I shall therefore recommend that so much of the complaint as al- leges Johnsky's activity in this respect as a violation of Section 8(a)(3) be dismissed. 4. Interference, restraint, and coercion Elsewhere in this Decision I have determined that certain statements and actions of Johnsky did not constitute evidence of a refusal to bargain, there being no obligation on his part to do so supra. In the context of the effect these statements had upon Johnsky's employees, however, a second look is required. I have found that Johnsky interrogated employee Aldeo concerning her union membership and em- ployee McGann as to whether he had taken a com- plaint to the Union. Likewise I have found that, in conversations with employees McGann and Bayer, Johnsky told them that they could either work for him or belong to the Union. Such conduct, the questioning of employees in a context of threaten- ing them or others with discharge unless they for- sake the Union, has the natural consequence of in- terfering with these employees in the exercise of their right to remain in the union if they so choose, and in similar circumstances the Board has so held. 14 I accordingly conclude that in these respects Respondent violated Section 8(a)(1) of the Act. It has also been alleged that Respondent Johnsky has also unlawfully interfered with, restrained, and coerced his employees by eliminating birthday benefits, sick leave benefits, coffeebreaks, and health and life insurance. Elsewhere in this decision I have found that Johnsky had no obligation to grant or continue any of these benefits for the reason that no operative contractual obligations ex- isted between him and the Union. Viewing these same actions or failures to act, as the case may be, in the light of employee rights guaranteed by the Act it is clear, of course, that in the absence of an agreement with the employees or with a union in their behalf they have no right to any of these benefits. Such being the case, Johnsky's failure to provide any or all of the items claimed could not possibly constitute interference with rights that do not exist. In any event, certain facts gleaned at the hearing from either credited evidence or admissions disclose that (1) coffee privileges, as distinct from 15-minute coffeebreaks, were provided; (2) John- sky was unaware of the former birthday policy in force at Home-Bristol, was unaware of Edmond Michaud's birthday, and Michaud admittedly never informed him either of the practice or of his 427-835 0 - 74 - 54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD birthday ; and (3 ) sick leave privileges were in fact granted by Johnsky after 1 week of illness, although no one appears to have received benefits under the plan. Upon consideration of the foregoing I conclude and find that Johnsky did not unlawfully interfere with , restrain , or coerce his employees in matters relating to birthday and sick leave benefits, cof- feebreaks , and the termination of health and life in- surance , and I will recommend that as much of the complaint as alleges these items to constitute viola- tions of the Act be dismissed. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion IV, above, occurring in connection with the operations described in section I, above, have a close, intimate , and substantial relationship to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY It having been found that Respondent has vio- lated the Act in certain respects , I will accordingly recommend that an order issue requiring Respon- dent to cease and desist therefrom and to take affir- mative action which will effectuate the policies of the Act. Insofar as I have found that certain of the allegations in the complaint have not been sup- ported by substantial evidence I shall recommend that so much of the complaint as pertains thereto be dismissed. [Recommended Order omitted from publica- tion. ]