John H. Scheidel, Inc.

JOHN H. SCHEIDEL, INC. 489 John H. Scheidel, Inc. and Amalgamated Food Employees Union Local 196, affiliated with Amal- gamated Meatcutters & Butcher Workmen of North America, AFL-CIO. Case 4-CA-5443 October 1, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 15, 1971, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached 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 those allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief; the Union filed exceptions to the Trial Examiner's Decision; and the Respondent filed cross-exceptions to the Trial Examiner's Decision and a brief in support of the Trial Examiner's Decision and its cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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, the cross-excep- tions, and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Labor Relations Board, for the Regional Director for Region 4, (Philadelphia, Pennsylvania), issued a complaint on February 26, 1971, against John H. Scheidel, Inc., herein called the Respondent or the Company, alleging that it discharged Richard Rokoskie in violation of Section 8(a)(3) of the National Labor Relations Act, as amended, herein called the Act, and also that it engaged in certain conduct alleged to be independently violative of Section 8(a)(1) thereof. Pursuant to notice, a hearing was held before Trial Examiner John P. von Rohr in Philadelphia, Pennsylvania, on March 29 and 30, 1971. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs were received from the General Counsel and the Respondent on April 26, 1971, and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT John H. Scheidel, Inc., a Pennsylvania corporation, is engaged in the operation of a retail food store at Spring City, Pennsylvania. During the year preceding the hearing herein , Respon- dent purchased goods and materials from outside Pennsyl- vania valued in excess of $50,000. During the same period it did a total volume of business in excess of $500 ,000. The Respondent concedes , and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Food Employees Union Local 196, affiliated with Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Alleged Discrimination Against Richard Rokoskie ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, John H. Scheidel, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner : Upon a charge filed on December 14, 1970, the General Counsel of the National The Respondent retail food store involved in this proceeding is known as the Spring Valley IGA. At one time this store was owned and operated by two Rokoskie brothers as a copartnership, one of them being Richard Rokoskie, the alleged discriminatee herein. About March 1968, the D. H. Delp Company, a grocery and meat wholesaler, took over this store due to indebtedness incurred to it by the partnership. At this time Richard Rokoskie was hired by Delp as a manager in its Leesport, Pennsylvania, store. John H. Scheidel was appointed manager of the Spring Valley store when Delp took over in March 1968. Although the record is not clear as to the details, Scheidel subsequently incorporated (Scheidel is president of the Respondent) and he became the owner and operator of the store. 193 NLRB No. 76 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In November 1969, Scheidel hired Rokoskie, who at this time was still employed at the Delp Leesport store, to head the meat department of the Spring Valley IGA. It is Respondent's position that Rokoskie, who was discharged on December 5, 1970, was a supervisor within the meaning of the Act and that therefore his discharge was not violative of Section 8(a)(3) of the Act. For the reasons noted below, I find merit to this defense.' Preliminarily, a question of fact arises as to whether Rokoskie had ever been designated by Respondent as the meat department manager. In this connection, Scheidel testified that at the time he hired Rokoskie he informed him that he was being hired as meat manager, informed him that he was to have 100 percent control of the meat department, and also that he told him to "run it like you did before I came here . . . any questions that you havejust ask me the questions and I'll answer or help you." On direct examination, Rokoskie testified that Scheidel did not inform him that he was to be in charge of the meat department. However, on cross-examination, after first testifying that he "could not recall" having been told that he was the meat manager, Rokoskie testified as follows: Q. Well, let me ask you this. Oh, by the way-I'll back up for a minute dust to clarify the record. The deli and meat were together, were they not, sort of one operation? A. More or less, yes, sir. Q. Was there a grocery manager? A. A grocery manager? Q. Yes. A. I think so. Q. You mean you don't know? I mean you where there for a year. Was there a man called by anyone or designated as a grocery manager? A. I would say yes. Q. But there was not a meat manager, designated by anybody as such? A. If you change the situation around to a later date I would have to say yes. Q. What date might you be talking about? A. I don't remember when Mr. Swartz had a problem with his [sic] and he missed a few weeks of work. Then Mr. Scheidel closed the service meat department and Chester came over to work with me in the self-service meat department. Aside from the foregoing, Rokoskie testified, "My co- workers probably thought of me as a manager, yes." As indicated below, several of the meat department also testified to this effect. Accordingly, and in view of all the foregoing, I find that Rokoskie was designated as the meat department manager and that this was so understood by the meat department employees.2 I It is to be noted that this is not the case where an admitted supervisor was alleged to have been discharged in violation of Section 8(a)(l) of the Act The General Counsel here contends that Rokoskie is an employee, not a supervisor, and the case was litigated on the basis of General Counsel's allegation that Rokoskie was discharged in violation of Section 8(a)(3) of the Act 2 It is noteworthy also that Rokoskie was hired by Respondent to replace a former manager of the meat department 3 Swartz's wages had increased to about $176 per week at the time of Rokoskie's termination. 4 The other employees were docked if they did not put in a full 40-hour Rokoskie was hired at a salary of $200.20 per week, this being a $25 weekly increase from what he had been paid by Delp. Except for Scheidel, this put Rokoskie as the highest paid person in Respondent's employ. By comparison, at the time of Rokoskie's employ the grocery manager received $150 per week, and Chester Swartz, a highly skilled and experienced meat cutter, received approximately $156 per week.3 Although Rokoskie punched a timeclock, he was given the discretion to put in 40 to 48 hours per week, depending on what he thought necessary, but in any event received his full weekly salary of $200.20. Scheidel did not check the timecard of Rokoskie but did so of other employees.4 At the times material hereto there were approximately 10 employees in the meat department. These included the delicatessen employees, the delicatessen department having been consolidated with the meat department not long after Rokoskie was hired. Although Rokoskie does not have the authority to hire or fire, the evidence establishes that he does have authority to effectively recommend such action. Thus, it is undisputed that Shirley Fries, an employee who sliced luncheon meat in the meat department for about 4 months, was discharged on Rokoskie's recommendation .5 It is further undisputed that in September 1970, Barbara Hall, a delicatessen employee, was hired by Respondent on the recommendation of Rokoskie. Rokoskie testified that Scheidel handles any discipline that is necessary and that all employees go to Scheidel when they want time off. Although Ronald Christman, a 3-1/2 year meat department employee, testified that he usually sought Scheidel's permission for time off, he testified also that in these instances, "I usually say something to both Mr. Rokoskie and Mr. Schetdel . . . I'd usually let them both know." He later added, "Naturally, if both of them weren't there, I only went to one." Rokoskie does not, however, participate in the determination of employee wage increases. While Rokoskie testified that he spends the majority of his time cutting meat (he estimated this to be 90-95 percent) the record leaves no doubt but that he was in charge of the day-to-day operations of the meat department, this including the responsible direction of the other meat department employees. Thus, Rokoskie acknowledged that Scheidel spent "very little time" in the meat department and that much of this was attributable to the fact that the coffee pot was in the back room. As to directing the meat department employees, Rokoskie further acknowledged that he could use his "own judgment" in telling the other employees what to do. Such directions included the assigning of delicatessen employees to the meat room to assist in the weighing and wrapping of meat, directions to employees concerning the forms and thicknesses into which meat would be cut, seeing to proper staggering of week Swartz testified that he was paid time and a half for over 40 hours, it appears that the other employees were also so paid. 5 Concerning this occurrence, Scheidel credibly testified that Rokoskie came to him and recommended that she be discharged , at this time stating that this employee "couldn't read a scale" and "didn't have all her marbles " Although I do not credit all Scheidel's testimony , in this instance I credit his testimony over Rokoskie who, in response to a leading question, testified that Scheidel initiated the discussion concerning Fries' discharge Without further elaboration, Rokoskie at this point merely testified, "John and I both felt it [Fries' work] was not satisfactory." JOHN H. SCHEIDEL, INC. 491 employees lunch hours, and the like Ronald Christman, an employee called by the General Counsel, testified that he looked to Rokoskie for directions concerning the perform- ance of work in the meat department. Similarly, Chester Swartz testified that Rokoskie gave him various instruc- tions and work assignments. Significantly, each of these employees testified that they regarded Rokoskie as "boss" of the meat department. Aside from the foregoing, as manager of the meat department Rokoskie had other responsibilities and duties which put him apart from other meat department employees. Thus, Rokoskie placed the orders for meat purchases; he was authorized to extend weekly credit to amounts as high as $4000; he was authorized to price meat items and/or place them on sale without consulting with anyone else; 6 and he conferred with salesmen and suppliers concerning meat department matters when they came to the store. In view of all the foregoing, and particularly in view of his authority effectively to recommend hiring and firing, his responsible direction of the work of other employees, the fact that the employees thus regard him as "boss," and his other duties consistent with his managership of the meat department, I find and conclude that Rokoskie is a supervisor within the meaning of the Act.7 In numerous similar situations the Board has found meat department managers to be supervisory employees. Buckeye Village Market, Inc., 175 NLRB No. 46; Gerbes Super Markets, Inc., 176 NLRB No. 1; Agawam Food Mart, 162 NLRB 1420; Nitro Supermarket, Inc., 161 NLRB 505; Bruno's Food Store, Inc., 131 NLRB 1023; The Great Atlantic & Pacific Tea Company, Inc., 128 NLRB 342; Food Haven, Inc., 126 NLRB 666; Winn-Dixie Stores, Inc., 124 NLRB 908; The Great Atlantic and Pacific Tea Company, 119 NLRB 1257. Accordingly, having found Rokoskie to be a supervisor within the meaning of the Act, it is recommended that the allegation that he was terminated in violation of Section 8(a)(3) of the Act be dismissed. B. The Wage Increase; Alleged Unlawful Interrogation An organizational campaign among Respondent's em- ployees began on November 6, 1970.8 On this date Rokoskie met with two union organizers on Respondent's parking lot and from them obtained union authorization cards and a copy of the Union's current contract with an association of retail food store employers in the Philadel- phia area. I here reach a conflict in the testimony, a 6 The larger weekly meat sales, however, are usually determined by the wholesaler who fixes the price schedule r It is well settled that an employee need not be invested with each of the supervisory indicia set forth in Section 2(11) of the Act The possession of any one of the authorities specified therein places the employee vested with this authority in the supervisor class Ohio Power Co v N L R B, 176 F.2d 385, 387 (C A 6), cert denied 338 U.S 899 Nitro Supermarket, Inc, 161 NLRB 505, 510-511 8 Mary Smith, a union organizer, testified that she "would say" that the organizational activities at Respondent's store began in mid-October, 1970 I do not credit this testimony , for there is absolutely no evidence of any activity prior to the date mentioned above 9 Although Swartz could not recall the exact date, he did testify that it was in the first part of November 1970 when Rokoskie and he agreed to display the contract to Scheidel resolution of which is relevant to the issue of the alleged unlawful wage increase, discussed below. Rokoskie testified that upon procurement of the latter document, he gave it to employee Chester Swartz to read over the weekend. He said that on the morning of November 10, 1970, a Tuesday, he discussed the matter with Swartz and they decided that they would show the contract to Scheidel. The foregoing testimony of Rokoskie was corroborated by Swartz.9 Continuing with Rokoskie's testimony, Rokoskie said that on November 10, shortly after his conversation with Swartz, he went up to Scheidel, handed him the contract, and stated, "John, here. These people are trying to organize your store." Conceding that Rokoskie gave him a copy of the contract and that at this time he learned of the organizational activity, Scheidel asserted that this took place on November 19 rather than on November 10. I credit the testimony of Rokoskie and find that he gave a copy of the union contract to Scheidel on November 10, while at the same time advising him that an organizational campaign was underway.'° It is undisputed that all of the employees, with the exception of the meat manager, were granted wage increases by Respondent effective as of November 14, 1970, these increases being reflected in the paychecks they received on November 18. Concerning this wage increase, Scheidel testified that on about November 2, 1970 he notified Sarah Yeager, an accountant clerk employed by the Delp Co. who prepares Respondent's payroll, that he intended to grant a wage increase. Yeager also testified that she received a telephone call from Scheidel on or about this date and that he notified her to this effect. However, as reflected in the testimony of Scheidel and Yeager, it is clear that at this time Scheidel did not give Yeager any names of employees who were to receive increases, nor at this time did he give any indication as to the amounts that would be involved. i i Although the parties stipulated that the November 14 wage increases ranged from 254 to 834 per hour, it appears from the employees who testified that the bulk of the increases were of the more substantial nature, these including the following hourly raises : Ronald Christman, 75 cents; Dorothy Yeager, 82-1/2 cents; Christine Bronson, 80 cents; Monika Howard, 75 cents; Barbara Hall, 70 cents; and Chester Swartz, 35 cents. Pointing to Scheidel's conversation with Yeager on November 2, 1970, Respondent asserts that since this occurred prior to any union activity, the wage increase of November 14 cannot be held to have been motivated by reasons proscribed by the Act. However, while it appears 10 Union Representative Smith corroborated Rokoskie concerning his obtaining the contract and authorization cards in the parking lot on November 6. 1 should further point out that in crediting Rokoskie over Scheidel with respect to the date on which Scheidel was given the contract, I have also taken into account the fact that documentary evidence in this case establishes Scheidel to have given incorrect testimony as to another date Thus, although Scheidel insisted that a letter from the Union requesting recognition (G C Exh 3) was received by Respondent on December 3 rather than on December 2, 1970, a postal registry return receipt for this letter shows on its face that in fact it was delivered to Respondent on December 2, 1970. 11 Thus, concerning her telephone conversation with Scheidel, Yeager testified, "All he said was, 'I am going to give raises to the employees and I'll let you know later.' " 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undoubtedly true that Respondent had planned on giving some wage increases prior to the union activity, upon the entire evidence and for the following reasons I am persuaded that the increases ultimately granted would not have been nearly as numerous or as substantial had it not been for the intervening union activity. In the first place, the November 14 wage increase was the first time Respondent ever gave a wage increase to all employees at the same time; 12 in the past these generally have been granted on an individual basis.13 This thus represents a departure from past practice. Secondly, Scheidel testified that his decision to give the employees the raise in question was predicated on (I) his discussions with a competitor, as well as with his father who also runs a retail store, wherein he discovered that the rates he was paying the employees were "unbelievably low" and (2) his receipt of complaints from the meat department employees to the effect that other stores were paying higher wages than they were receiving. These latter complaints, he said, were made by the employees "a month or two" prior to the November 14 wage increase. The fact is that if indeed Scheidel received any such complaints, the evidence reveals that he had already responded to them within a month or two prior to November 14. Thus, Yeager, who received a wage increase of 82-1/2 cents on November 14, had already received a 25 cent hourly increase as recently as within the second or third week of October 1970. Similarly, Hall, who received 70 cents on November 14, had been given a 25 cent raise in the preceding month; and Bronson, the recipient of 80 cents on November 14, was given a 25-cent increase in August.14 Thirdly, I think it more than coincidence that the wage raises given to the six employees, as hereinabove set forth, all of whom were meat department employees, brought these employees to the almost identical wage levels for their respective job classifications as set forth in the prevailing union collective-bargaining agreement.15 A copy of this contract, it will be recalled, was given to Scheidel just 4 days prior to the granting of the wage increases. It is well established that Section 8(a)(1) prohibits conduct by an employer "immediately favorable to employees undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is calculated to have that effect." 16 In view of all the foregoing, I find that Respondent granted the November 14 wage increase for the purpose of influencing the employees against unionization. By such conduct, Respondent violated Section 8(a)(1) of the Act. There remains the allegation that Respondent interrogat- ed employees concerning their union membership and activities in violation of Section 8(a)(1) of the Act. As previously noted, on December 2, 1970, Respondent received a letter from the Union in which it claimed a majority and requested a meeting to negotiate a contract. According to the testimony of employee Ronald Christ- man, upon receipt thereof Scheidel came up to him with the 12 Testimony of Dorothy Yeager. 13 As reflected in the testimony of employee witnesses 14 Further, not only had Respondent thus responded to the so-called employee complaints, but the testimony of employee witnesses reflects that it was not Respondent's practice to grant successive wage increases within such short intervals of time, this again reflecting a departure from Respondent's past policy. letter, handed it to him, and asked if he had signed a union card. Christman responded that he had. Employee Monika Howard also testified that at about this time Scheidel came up while she was working and asked if she had signed a union card. She said she responded affirmatively. Employ- ee Dorothy Yeager testified that upon receipt of the Union's letter Scheidel broached her and stated, "I got a letter from the Union and I see the majority of the meat department signed. Did you sign a card?" Testifying that she advised him that she had, she said he then stated, "That's a shame." With respect to all the foregoing, Scheidel testified that he did not "explicitly" ask the employees if they had signed a union card, but testified "in conversation, it's possible they told me." I credit the testimony of the employees that they were questioned in the manner set forth above. Standing alone, I would be inclined not to regard the spontaneous questioning of a few employees as to whether they signed a union card after receipt of a letter requesting recognition as independently violative of the Act. However, since the interrogation here occurred in the context of an unlawful wage increase which was granted shortly thereaft- er, and also since the questioning of one of the employees was coupled by Scheidel's overt expression of displeasure when she conceded that she had signed a card, from Board precedent it would appear that the evidence preponderates in finding that such interrogation was violative of Section 8(a)(1). I so find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in this case, I hereby make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce 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. is For example, the raise given to Barbara Hall , employed as a delicatessen clerk on June 26, 1970, put her weekly wage rate at about $104. This is comparable to the contract's weekly wage rate for this job classification set at $103 for employees employed 3 months and $106 for employees employed during their second 3 months. 16 N LR B v Exchange Parts Co., 375 U.S. 405. JOHN H. SCHEIDEL, INC. 3. By the granting of wage increases under the circumstances described herein and by coercively interro- gating employees concerning their union membership and activities, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not committed unfair labor practices within the meaning of Section 8(a)(3) of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 17 ORDER Respondent, John H. Scheidel, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully granting economic benefits, or announc- ing the grant of economic benefits, for the purpose of undermining the Union; (b) Coercively interrogating employees concerning their union membership and activities; (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. However, nothing herein shall be construed to require the Respondent to rescind or discontinue new wage rates or other benefits previously granted. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its store at Spring City, Pennsylvania, copies of the attached notice marked "Appendix." 18 Copies of said notice on forms provided by the Regional Director for Region 4, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced or covered by any other material. (b) Notify the Regional Director for Region 4, in writing, what steps Respondent has taken to comply herewith.19 IT In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be 493 adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes. is In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 19 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read- "Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT grant you wage increases or other benefits to discourage you from designating Amalga- mated Food Employees Union Local 196, affiliated with Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or any other union, as your representative for collective bargaining. However, nothing requires us to discontinue any benefits previously given to you. WE WILL NOT question you about your union membership or activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment where authorized in Section 8(a)(3) of the Act. JOHN H. SCHEIDEL, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 1700 Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 215-597-7601.