Kinter Brothers, Inc.

KINTER BROTHERS , INC. 199 Kinter Brothers , Inc., United Food Service, Inc.' and Retail Store Employees Union Local 880, Retail Clerks International Association, AFL-CIO.2 Case 8-CA-4717 June 24, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND BROWN On February 8, 1968, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint, and recommending that the com- plaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and supporting brief, and the Charging Party filed cross -exceptions and support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 the case , and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. ' Name of Respondent as amended at hearing. 2 Name of Charging Party as amended at hearing. TRIAL EXAMINER'S DECISION STATEMENT OF THE PROCEEDING GEORGE J. BoTT, Trial Examiner: Upon a charge of unfair labor practices filed on August 8, 1967, against Kinter Brothers , Inc.,' herein called Respondent Kinter, the General Counsel of the Na- tional Labor Relations Board issued a complaint and notice of hearing dated September 26, 1967, in which he alleged that Respondent Kinter Brothers had engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, herein called the Act. The complaint also alleged that United Food Ser- vice, Inc., herein called Respondent United, was a successor employer to Respondent Kinter Brothers with respect to the operation of a food store in Mentor, Ohio, formerly operated by Respondent Kinter.2 Both Respondents filed answers, and a hearing was held before me in Cleveland, Ohio, on November 27 and 28, 1967, at which all parties were represented. Subsequent to the hearing, all parties filed briefs which I have carefully con- sidered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION OF THE BOARD Respondent Kinter is an Ohio corporation which had its principal place of business in Mentor, Ohio, where it owned and managed a store and was en- gaged in the retail sale of groceries and meat until August 13, 1967, when it transferred possession of its Mentor store pursuant to a sales agreement with Respondent United entered into on July 31, 1967. Annually, Respondent Kinter, in the course and conduct of its business, derived in excess of $500,000 from retail sales of its products. In excess of $10,000 worth of said products were transported annually to Respondent Kinter's store from enter- prises located in the State of Ohio, which enter- prises had received said products directly from out- side the State of Ohio. Respondent Kinter con- ceded, and I find, that at all material times herein, it was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent United is an Ohio corporation which owns and manages a food store in Mentor, Ohio, where it is engaged in the retail sale of groceries and meats. By projection, Respondent United will, in the period commencing July 31, 1967, and end- ing July 30, 1968, derive gross receipts from the sale of food products in excess of $500,000. Addi- tionally, during the same period, food products valued in excess of $10,000 will be transported to Respondent United's Mentor store from enterprises located in the State of Ohio, which enterprises had received said products directly from outside the State of Ohio. Respondent United admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ' [See fn. 1 of the Board Decision. I • There was no charge filed at any time against Respondent United, and the complaint did not allege that it committed any unfair labor practices, although, as indicated, Respondent United was alleged to be a successor employer. 172 NLRB No. 31 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union Local 880, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues Before it sold its assets to Respondent United on July 31, 1967, Respondent Kinter operated a self- service grocery and meat market in Mentor, Ohio, and James Harold Kinter , the president of the cor- poration , was its virtual owner and manager of all operations.3 Respondent Kinter's store included a meat department which at various times employed as many as two meatcutters and one meatwrapper. The Union began to organize Respondent Kinter's employees in July 1965, and upon charges and amended charges of unfair labor practices, and after three hearings before a Trial Examiner of the Board who issued his decision on March 29, 1967, the Board, on August 16, 1967, found that Respon- dent Kinter had violated Section 8(a)(1) of the Act by threatening, interrogating, and polling its em- ployees and granting them a bonus ; had dis- criminated against certain employees in violation of Section 8(a)(3), (4), and (1) of the Act; and had refused to bargain with the Union in violation of Section 8(a)(5) of the Act." Mrs. Helen Kolesar , the alleged discriminatee in this case, was working as a meatwrapper during the Union 's effort to organize Respondent Kinter. In the earlier case, the Board found, in agreement with the Trial Examiner , that Respondent had dis- criminatorily reduced Kolesar's hours from 33 to 22 in July 1965. Kolesar's hours were subsequently increased to 40 a week after a meatcutter quit Respondent, but Respondent reduced her hours again, this time to 16 a week, in July 1966 after it hired a second meatcutter. Contrary to the Trial Examiner, the Board found that this second reduc- tion was illegally motivated too, and in violation of Section 8(a)(1), (3), and (4) of the Act.' Kolesar testified again on November 14, 1966, in the last of the three hearings in the earlier case. At the time she was still employed as a meatwrapper, working 16 hours a week. On or about January 1, 1967, Kolesar's hours were reduced to 8, or 1 day a s Kinter was known to employees as Harold Kinter and will be referred to as such. ' Kinter Brothers, inc., 167 NLRB 57, of which I take administrative notice. s The second reduction in Kolesar's hours of employment took place after she testified in the first of three hearings in the previous case, and that is the basis for the Section 8(a)(4) finding. The department in which Kolesar worked, however, has been eliminated and all meat cutting and wrapping is done centrally at another of Respondent United's stores. Kinter employed approximately eight or nine employees when it sold its business. week, and on or about February 23, 1967, her em- ployment ceased. The complaint in this case alleges that Kolesar's hours were reduced and her employment ter- minated because she had given testimony under the Act and had engaged in union activity. Respondent Kinter contends that Kolesar was not terminated, but laid off for good economic reasons, and that her layoff and the previous reduction in her work- ing hours were both based on business conditions. Respondent Kinter sold its inventory and other assets to Respondent United on July 31, 1967, and on August 14 Respondent United commenced operating the store at the same location with a few of Respondent Kinter's employees and more of its own, and in pretty much the same way as Kinter had.' General Counsel contends that United is a successor employer, within the meaning of certain cases, responsible for remedying its predecessor's unlawful conduct under the doctrine established by the Board in Perma Vinyl Corporation, Dade Plastic Co., and U.S. Pipe and Foundry Company, 164 NLRB 968. Respondent United contends, on the other hand, that it is not a successor, and that Perma Vinyl is inapplicable in any case. B. The Alleged Discriminatory Reduction in Working Hours and Termination of Helen Kolesar Sometime during the payroll period ending January 1, 1967, Kolesar began to work 8 hours a week rather than 16. She testified that, sometime during the middle of December 1966, or at the beginning of the following year, Conti, the meat- cutter who normally told her at the end of the day when to report for work again, started to use her only 1 day a week.? This practice continued during January and early February. Kolesar testified that after she completed her last day of employment on February 13 and, as usual, asked Conti when she should return, he told her that Harold Kinter, Respondent's president, had told him that they would need Kolesar no longer because "work was slow," but that she would be called when needed. Kolesar said she made two subsequent attempts to find out if work was available at Respondent be- fore she sought another job. She testified that she sent her son Robert to Respondent's store on Sun- day, February 19, to make inquiries , and he spoke with Sabor, the produce manager , who appeared to ' Kolesar's pay stubs which are in evidence as G C. Exh 3 seem to be slightly incomplete and somewhat inconsistent with her testimony There are no pay stubs for the weeks ending December 18 and 25 , 1966, for ex- ample, which is an additional reason for not finding that the reduction in hours may have occurred in "the middle part of December" as she sug- gested As a matter of fact, Kolesar testified that between the payroll periods ending December 19, 1966 , and January I, 1967, she "worked extra hours" because one of the meatcutters was ill. The exhibit also shows that Kolesar worked 2 days during the week ending January 8, and this may very well be the time she was used during the meatcutter's illness KINTER BROTHERS , INC. 201 know nothing about the matter, but volunteered the information that Kolesar would be called in to work if she were needed.8 On the following Thursday, February 23, Kolesar telephoned Conti and asked about work. Conti left the telephone, she said, and, when he returned he told her that Kinter said that she was not needed and they "didn't want (her) to come in yet." Kolesar never got in touch with Respondent Kinter again , and she said that no representative of Respondent ever tried to reach her to offer her employment. On March 10, 1967, Kolesar began to work for another employer on a 40-hour week basis, and she was still employed at that employer 's market on the same basis at the time of the hearing . She said she did not tell Respondent Kinter that she had ob- tained full-time employment elsewhere because she expected to be called back to work for Respondent. Respondent's president Kinter, testified that from November 1966 to February 1967 sales declined steadily in all departments, and records in evidence show that sales in the meat department in December 1966 were approximately 25 percent lower than they were in November 1966. Kinter said that because of the decline in business it was necessary to lay off Kolesar, which, contrary to her version, he claimed he did personally on February 6, 1967. According to him, he told Kolesar that because sales were down he would have to lay her off temporarily but that he would call her back when business improved. Kinter explained the reduction in Kolesar's hours on the same basis. This occurred, according to him, on January 1, 1967, when she was cut back from 2 days of employment to 1. Although Kolesar had testified that she was laid off by Conti on February 13 and that no store representative tried to reach her thereafter to have her return to work, Kinter testified that there were actually three efforts made to provide her with work after February 6, the date on which he said the layoff occurred. The first attempt was made in the very week he laid Kolesar off, he said, by Conti, in his presence. He heard Conti ask Kolesar if she could work that day, and Conti told him after his conversation with her that she could not report for personal reasons. On the following Monday, which Kinter erroneously thought was February 11, Kolesar was again called for work by Conti, and she reported and worked that day.9 The third and last offer of employment to Kolesar was made by Kinter personally, he said, on March 12, 1967, after a butcher named Ely quit his employ. Kinter testified that he telephoned Kolesar's home and spoke with her son Robert who told him that Mrs. Kolesar was not there. Kinter said he told Robert that he wanted his mother to come in to work, but that Robert stated that his mother "wasn't interested; she already had a job." Neither Conti nor Kinter tried to reach Kolesar again . Shortly thereafter, Kinter placed an ad in a local newspaper for an employee for the meat de- partment, and hired Ann Flynn on March 19. He testified that Flynn worked 40 hours a week and, like Ely, cut and wrapped meat. He said Kolesar was unable to cut meat because of a physical han- dicap, and that he had no need for a wrapper on a 40-hour basis after March 10. General Counsel contends that the reduction in Kolesar's hours after the November 1966 hearing in the earlier case and her subsequent termination was nothing less than a continuation of Respondent's campaign engaged in for the purpose of "freezing out" all union adherents. In support of his position he relies heavily on the Board's findings in the previous case, and urges that Kinter's testimony is no more entitled to credence in this case than it was in the first, where the Board did not accept his economic defense regarding the reduction in Kolesar's hours on two occasions. I have carefully considered the findings in the previous case and, although there are similarities in the events as they relate to Kolesar, there are some significant differences. These differences and my inability to say either on the basis of Kinter's demeanor or any glaring defects in his account that he is not to be credited lead me to conclude that General Counsel has not established by a preponde- rance of the evidence that Respondent Kinter was motivated by discriminatory considerations when it reduced Kolesar's hours to 8, and subsequently laid her off subject to recall. First of all, in the previous case, Kinter's explana- tion for the reduction in Kolesar's hours on the ground that sales in the meat department had fallen off was rejected by the Board, in part at least, because he had offered "no details or substantia- tion" to support his testimony, but, in this case, sales records in evidence show that there was a sub- stantial drop in meat department sales in December and no improvement thereafter. I find that there was a reduction in sales, as Kinter testified, not only in the meat department, but storewide. Second, although this point is not of major im- portance, Kolesar received a 10-cent-an-hour raise in January 1967, which was after she testified in the November 1966 hearing, and this is some evidence that Respondent was not out to get her because of her testimony, as the complaint alleges . Moreover, when one of the meatcutters became ill in December 1966, Kolesar was given extra work, and this too was shortly after she had testified. Third, I credit Kinter's testimony that, twice after he laid Kolesar off, Conti telephoned her and asked 8 Sabor's title does not mean that he was a supervisor , and there is no " Monday was February 13, which Kolesar had said was her last day of evidence that he was . He is also described elsewhere in the record as a employment , and the day on which Conti had told her not to report again "stock man." Some weeks after the sale to Respondent United , he was unless notified. made assistant store manager. 202 DECISIONS OF NATIONAL her to come back to work. If Kinter was bent on "freezing out" Kolesar, he would have no reason to use her at all after he laid her off on February 6, and thus drag out the matter. This apparent vacilla- tion actually is evidence that Kinter was utilizing Kolesar's services only when business requirements indicated it. Fourth, as I have already suggested, Kinter's overall testimony does not appear defective in re- gard to demeanor, plausibility, or recall. In view of the time elapsed from alleged discriminatory reduc- tion in hours to the filing of the charge (8 months) and because Kinter is no longer in business, I at- tribute his difficulty with dates and other details to normal fading caused by the passage of time. Con- trary to General Counsel's contention, Kinter's stumbling on dates of occurrences is just as con- sistent with the theory that his testimony was un- rehearsed and that he was making an honest effort to remember as it is with attempted distortion.1° In any case , there is nothing to persuade me that Kolesar's memory was any better than Kinter's after such a lapse of time. Finally, consistent with his earlier offers of em- ployment to Kolesar only when she was needed after her layoff, Kinter sought to reemploy her in March 1967, when Ely, one of the two meatcutters, quit, and, being advised that Kolesar was unin- terested in employment with him, hired another person . I make these findings on the basis of Kin- ter's uncontradicted testimony that he telephoned Kolesar 's home on March 10, spoke with her son in her absence , told him he wanted his mother to get "' For example, Kinter said a certain date was a Monday when it was not, and he first testified that he telephoned Kolesar's home on February 12 to ask her to come to work " The charge was filed on August 8, 1967. and there is no evidence that Kolesar's hours were reduced at all during the Section 10(b) period because the record clearly shows that her hours were cut no later than sometime during the payroll period ending January I or 17, 1967. General Counsel, conceding that there was a 6-month limitation problem under the LABOR RELATIONS BOARD in touch with him about coming to work, but was informed by him that his mother was working el- sewhere, which was a fact, and was not interested. Ann Flynn, the person Kinter hired, cut meat in ad- dition to wrapping, and it appears, therefore, that she replaced not only Ely, the meatcutter, but Kolesar too. The case is close, mainly because of the Board's findings in the previous case regarding discrimina- tion against Kolesar the second time, but, prin- cipally on the basis of the above considerations, and on the record in the whole case, I find that Respondent Kinter did not violate Section 8(a)(1), (3), and (4) by reducing Kolesar's hours of employ- ment and later laying her off, as alleged in the com- plaint." CONCLUSIONS OF LAW 1. Respondents are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Kinter did not violate the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. Act, stated that the date of February 9, fixed in the complaint as the beginning of the alleged discrimination , was chosen as "an arbitrary date within the 10( b) period." In view of my disposition of the case on the merits, I find it unnecessary to determine whether or not, if this third reduc- tion in hours is merely a continuation of Respondent's original discrimina- tion against Kolesar, the charge in this case is timely or even needed at all See Winn-Dare Stores, Inc , 147 NLRB 788, The Davis Fire Breed Cont- party, 131 NLRB 393