Phil's Sav-Mart Service

PHIL'S SAV-MART SERVICE 267 Philip David Sachs and Michael Sachs, a partnership, d/b/a Phil's Sav-Mart Service, Peko Ltd., and Sav-Co., Inc., d/b/a Sav-Mart, Jointly and Gary E. Waligorski and David A. Templeman and Steve M. Noel and John A. Pauline. Cases 14-CA-6540-1, 14-CA-6540-2, 14-CA-6540-3, and 14-CA- 6540-4 March 7, 1973 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 15, 1972, Administrative Law Judge Paul E. Weil issued the attached Supplemental Decision in this proceeding. Thereafter, the Respon- dent Peko Ltd. and Sav-Co. filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Supplemental Decision in light of the exceptions and brief, and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommended Order as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Philip David Sachs and Michael Sachs, a Partner- ship, d/b/a Phil's Sav-Mart Service, Peko Ltd., and Sav-Co., Inc., d/b/a Sav-Mart, Jointly, Collinsville, Illinois, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organiza- tion by discriminating in regard to hire, tenure, or other conditions of employment. (b) Interrogating employees as to their or other employees' union activities or as to the reasons therefor or telling employees that they will lose their jobs in the event they support the Union. (c) In any manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities except to the extent such right to refrain may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Each jointly and severally take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Offer to Gary E. Waligorski, David A. Templeman, Steve M. Noel, and John A. Pauline reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions at the gas station if it is presently open and under control of Respondents at their shopping center at Collinsville, Illinois; otherwise offer the said employ- ees reinstatement at the existing operations at the said shopping center in any substantially equivalent jobs for which they may be qualified, without loss of seniority or other rights or privileges, dismissing, if necessary, any person hired after the discharge of the above-named employees; and if there are still insufficient job openings, distributing available positions without discrimination against any of the said employees because of union affiliation or activities, following the system of seniority, if any, customarily applied in the conduct of the Respon- dent's business, and create a preferential hiring list containing the names of any employees above named for whom there are not sufficient job openings and, as job openings occur thereafter, offer reinstatement to said employees to any substantially equivalent jobs for which they may be qualified. (b) Make each such individual whole for any loss of earnings suffered by reason of the discrimination against him from the date of the termination of his .employment, until the fulfillment of the obligation imposed in paragraph 2(a) in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at their place of business in Collinsville, Illinois, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 14, 1 In the event that the Board 's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals enforcing an Order of United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board." Order of the National Labor Relations Board" shall read "Posted pursuant 202 NLRB No. 48 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after being duly signed by their representative shall be posted immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to each of the individuals named above, at his last known address, a copy of the above-de- scribed notice duly signed by their representative. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through represent- atives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything that interferes with or restrains or coerces employees with respect to these rights. WE WILL NOT discriminate against our employ- ees for engaging in activities on behalf of the Union or on their own behalf. WE WILL NOT lay off or discharge employees for engaging in union activities. WE WILL offer Gary E. Waligorski, David A. Templeman, Steve Noel, and John A. Pauline reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions at the gas station if it is open under our control; otherwise WE WILL offer the said employees reinstatement at the existing opera- tions at our shopping center in Collinsville in any substantially equivalent jobs for which they may be qualified, without loss of seniority or other rights or privileges, dismissing, if necessary, any persons hired after the discharge of the above- named employees; and if there are still insuffi- cient job openings, WE WILL distribute available positions without discrimination against any such employees because of union affiliation or activi- ties, following the system of seniority, if any, customarily applied in the conduct of our business, and WE WILL create a preferential hiring list containing the names of any employees above named for whom there are not sufficient job openings and, as job openings occur thereafter, offer reinstatement to said employees to any substantially equivalent jobs for which they may qualify. WE WILL pay the above named employees for any loss suffered because of our discrimination against them, with 6-percent interest, for the period from their termination until we fulfill the foregoing provision. PHILIP DAVID SACHS AND MICHAEL SACHS, A PARTNERSHIP, D/B/A PHIL'S SAV-MART . SERVICE PEKO LTD., AND SAV-CO., INC., D/B/A SAV-MART, JOINTLY (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstate- ment, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 compli- ance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167. SUPPLEMENTAL DECISION PAUL E. WEIL, Administrative Law Judge: On June 6, 1972, I issued a decision in this proceeding dismissing the complaint on jurisdictional grounds . On October 19, 1972, the National Labor Relations Board, hereinafter the Board, reversed my decision, finding that Phil's Sav-Mart Service, Peko, Ltd., and Sav-Co., Inc., d/b/a Sav-Mart, comprised an integrated enterprise conducting a unified operation as a single employer, that Phillip Sachs is an agent for the enterprise , and that the Board has jurisdiction to determine whether or not the enterprise violated Section 8(a)(1) and (3) of the Act as alleged in the complaint. The PHIL'S SAV-MART SERVICE 269 Board thereupon remanded the case to me for issuance of a Supplemental Decision limited to consideration of that issue and containing recommendations with respect there- to. The Alleged Unfair Labor Practices Background The operation of Phil's Sav-Mart Service, hereinafter called the Station was apparently commenced by Phillip Sachs in 1968. Shortly thereafter Phillip Sachs was inducted into the Armed Services and his younger brother, Harvey, became the ostensible manager on his behalf. Harvey was armed with a rubber stamp bearing Phillip's signature and, presumably, the $52 cash outlay which Phillip had furnished upon becoming manager of the station. Four employees were utilized, each on a part-time basis, to operate the station during the hours that the Sav- Mart store operated, 12 hours Monday through Saturday and 10 a.m. to 6 p.m. on Sunday. Apparently occasionally during this time Harvey took time from his studies for a master's degree at a nearby university to supervise the operation and his younger brother, Michael, a teenager, appears also to have been present on occasion. Sometime in May 1971, Michael, who was in the Coast Guard Reserve, was called up for duty and served some 5 1 /2 months, returning October 22, 1971. On September 29, 1971, the four charging parties, who were the part-time employees, all signed authorization cards for the Union. On October 2 or 3 David Templeman was discharged by Respondent allegedly because of shortages in the accounts. At the time he was discharged he told Harvey that he could not be discharged because he was a member of the Union. Harvey claims that this is the first knowledge he had of the existence of union activity among the employees. Templeman complained to Union Business Agent Baum, who made arrangements through Sidney Katz, to meet with Ben Sachs, Harvey's father, the following morning, October 4. On this occasion Baum demanded that Templeman be reinstated with backpay' and that Respondent sign a contract with the Union. Ben stated that he had no authority to sign a contract and that Baum would have to talk with Harvey. Subsequently, Baum arranged a meeting with Harvey, which was delayed for a period of time because Harvey was not available due to his educational activities. When Baum met with Harvey, Harvey informed him that he had no authority to sign a contract with the Union and agreed to send a contract to his brother Phillip, who was stationed in Washington, D.C. On October 4, on arriving at the service station for his shift, employee Waligorski was informed that he had been laid off because Respondent was required to put Temple- man back on duty? Harvey and Ben Sachs followed Waligorski into the backroom of the station when he went to collect his belongings and Ben asked Waligorski who made him join the Union. Waligorski responded that he had joined on his own free will, to which Ben responded, "Look what the Union got you, you owe a $25 initiation fee and you're out of a job," and then asked why Waligorski joined the Union.. Waligorski answered that the Union had more to offer, the only way he could get anything would be through the Union. Waligorski said that he had another job lined up and left the station. A day or two later Harvey informed the employees that there were two new rules; no smoking would be allowed at any time at the station and radios would not be played at the station. According to the testimony of Harvey Sachs, he had received complaints from management of Sav-Mart and from employees about the loud radio playing and about the type of music that was played.3 Templeman told Waligorski about the changed rules, and Waligorski asked Harvey Sachs if it was true, that there were new rules. Harvey answered that the rules were in effect and that "if the station was going to be a union station it was going to be run like a union station." According to the testimony of Waligorski, which I credit, all the employees and Michael and Ben Sachs' smoked at the station; occasionally the employees would absentmind- edly continue smoking while they were pumping gas, concededly a dangerous move. Also at most times radios belonging to one or another of the employees were kept running at the station. No complaint was made of this and indeed Michael Sachs purchased a connector by which a battery-operated radio could be plugged into the station's electrical supply rather than furnishing batteries which all employees including Michael had participated in prior to the purchase of the transformer. Some time in mid-October Union Representative Baum contacted Harvey Sachs and inquired whether Phillip had signed a contract. Harvey said that he had not done so, whereupon Baum, again working through the principals of Sav-Mart, attempted to get a contract signed. Failing in doing so he mounted a picket line on October 23. All employees engaged in the strike and from that time on it appears that Michael Sachs, who had returned from his Coast Guard assignment the day before, worked full time at the station, a total 80 hours a week. After 4 days of picketing, and after the intervention of the principals of Peko and Sav-Mart, Harvey and Michael Sachs and their father Ben came to the Union's office to sign a contract. When they saw the striking employees present at the office, they refused to sign a contract in their presence. Union Agent Baum thereupon called Sidney Katz who spoke to Ben Sachs and apparently changed his mind. Michael then signed the contract and stamped Phillip Sachs' signature beneath his own, writing after the signatures, "partners" in parenthesis. After Michael signed the contract he looked up at the four employees and said "there is a work shortage so the whole crew is laid off." None of the four employees have ever resumed work at the station. The record reveals that from October 28, the day on which the contract was signed, until December 31, on which day the Sachs boys discontinued operating the service station, Michael worked every hour that the service station was open with occasional assistance from his brother, Harvey. No other employees were used during this period of time. The record does not disclose whether the 1 It appears that Templeman lost only 2 hours' pay. 2 It appears that this layoff was rescinded. The General Counsel does not complain of any action with regard to Waligorski on that date. 3 The boys apparently played rock music on the radio at all times. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD service station has been operated since January 1, 1972, or by whom. Discussion and Conclusion The General Counsel contends that the conversation on October 4 between Ben Sachs and Jerry Waligorski in the presence of Harvey Sachs constituted a violation of Section 8(a)(1). Ben Sachs did not take the witness stand. Harvey Sachs testified that the only question his father asked was how long the employees had been members of the Union. He denied that any other statements were made. I credit Waligorski's testimony. I find that the conversation constituted an unlawful interrogation of Waligorski and constituted an additional threat of discharge because of his union activities. The General Counsel also contends that the rules against smoking and playing the radio at the station were instituted in retaliation for the union activities of the employees. I credit Waligorski's testimony that in response to his question as to the institution of the rule, Harvey Sachs stated that if the station were going to be under contract it would be run as a union station, and I find this constitutes an admission by Harvey Sachs that the rules were instituted in retaliation for the union activities of the four employees. I do not credit Harvey Sachs' testimony that the rules were instituted (1) because of complaints from the management of Sav-Mart, (2) because of complaints from the customers, or (3) at the suggestion of Union Represent- ative Baum. As to the first there is no evidence, other than Harvey's assertion, that anyone from Sav-Mart or any customer ever complained about the radio or smoking. There is evidence that smoking was forbidden at the gas pumps, but that not only the employees but members of the Sachs family were guilty of this violation. There is no explanation for the expansion of the rule to include smoking anywhere on the premises. With regard to the radio, it is clear that not only had management not warned against the use of a radio in the past, but the Sachs family had actively supported, by furnishing batteries and electrical power, the custom of keeping a radio on at the station at all times. With regard to the third point Harvey admitted on cross-examination that the only topic of conversation between him and Baum with regard to rules was the discussion of the institution of a rule against the use of manjuana on the premises. It appears that at the discussion in question Harvey suggested that the station should have rules and Baum suggested that if they instituted rules they should do it in writing and he would inform the Sachs brothers if any of the rules they proposed to institute violated the contract. I do not credit Harvey's assertion, which is denied by Baum, that Baum first suggested the rules that were instituted. I find that by the institution of the rules in retaliation for the employees engaging in union activities Respondent violated Section 8(a)(3) and (1) of the Act. Finally the General Counsel contends that by the layoff of the four employees, Waligorski, Templeman, Noel, and Pauline, Respondent violated Section 8(a)(3) of the Act. Respondent contends that the layoff was occasioned by the lack of business at the service station. However, it appears that the hours that the four employees worked were the same hours as those thereafter worked by Michael Sachs, with occasional assistance from his father and his brother Harvey. There is no evidence, other than the naked assertion of Harvey Sachs, that the business in any way decreased except during the period the Union was picketing the station. No books or records of receipts or sales were produced by Respondent to support Harvey Sachs' assertion either as to the business prior to or after the strike. It may be noted that although in his testimony Harvey Sachs attempted to characterize his brother Michael as an employee, and indeed the senior employee, Sachs also testified that in the period after the strike until the Sachs brothers discontinued the management of the station Michael was paid at the rate of $1.75 an hour, substantially below the rate called for by the contract which Michael signed with the union, as a partner in the enterprise. There is no evidence that any fringe benefits were paid for him such as are called for by the Union contract. I conclude that the layoff was executed in retaliation against the employees for joining the Union, which, with the fortuitous release of Michael from the Coast Guard on October 22, enabled Respondent to continue operating the station as a nonunion enterprise in spite of its contractual commit- ment. I conclude that the layoff of the four charging parties was violative of Section 8(a) (3) and (1) of the Act. Upon the foregoing factual findings and conclusions I come to the following: CONCLUSIONS OF LAW 1. Teamsters Local Union 971, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men, and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By the layoff of its employees in retaliation for their union activities Respondent discriminated against its employees in regard to hire and tenure of their employ- ment thereby discouraging membership in a labor organi- zation in violation of Section 8(a)(3) of the Act. 3. By adversely changing conditions of employment, by the unilateral institution of working rules , Respondent discriminated against its employees in regard to the terms and conditions of their employment thereby discouraging membership in a labor organization in violation of Section 8(a)(3) of the Act. 4. By the acts set forth in subparagraphs 2 and 3 above, by coercively interrogating employees about their union membership, and by informing an employee that he had been laid off because of his union membership, Respon- dent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 5. The actions of Respondent described above consti- tute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they be PHIL'S SAV-MART SERVICE ordered to cease and desist therefrom and to take certain joint and several affirmative action in order to effectuate the policies of the Act . In the absence of evidence that the service station is presently being operated , or under what circumstances it is being operated , I deem it appropriate that the discnminatees be offered immediate reinstatement in any jobs for which they may be qualified in the existing operations of Respondents without loss of seniority or other rights or privileges and that the Respondents be required to dismiss if necessary any persons hired in any such jobs after the unlawful termination of the discrimina- tees. I shall recommend that the Respondents shall make them whole jointly and severably for their loss of earnings suffered because of Respondent's acts for the period from 271 their respective losses of employment until they be thus reinstated by the payment to them of the amount they would have earned, less interim earnings, computed on a quarterly basis with interest at the rate of 6 percent per annum in the manner heretofore established by the Board.4 I shall also recommend, since any notice to employees with respect to the unfair labor practices may not otherwise come to the attention of the affected employees , appropn- ate publication thereof in addition to the usual posting requirements. Upon the basis of the forgoing findings of fact and conclusions of law and upon the entire record in the case I hereby recommend that the Board issue the following. [Recommended Order omitted from publication.] 4 Lees Shopping Center, Inc, 198 NLRB No. 73