Food Fair Stores, Inc.

FOOD FAIR STORES, INC. Food Fair Stores, Inc. and Clarence McGrath. Case 4-CA-5760 March 12, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 17, 1972, Administrative Law Judge Irving Rogosin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief . The General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' 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 Administrative Law Judge and hereby orders that Respondent, Food Fair Stores, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said Order. 1 The Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. DECISION STATEMENT OF THE CASE IRVING ROGOSIN, Administrative Law Judge: The complaint, issued June 9, 1972, as amended at the hearing, alleges that, 6n or about November 17, 1971, Respondent, through named supervisors, discharged or terminated 21 named employees,' and has since failed and refused to recall all but John Caruso and Vernon Jordan to their 1 Clarence McGrath, Raymond Brown, Samuel Ladd, Robert Driscoll, Anthony Vercio, Frank Buchinsky, Vernon Jordan, George Medica, Gerald Cohen, George Smith, Jr., Thomas Whelan, William Davis, Albert Evans, Joseph Dittus, Nicholas Fantozzi, E. Connelly, R. Mager, Bennie Bardaji, John Caruso, William Murtha, and William Barrett. The complaint alleges that Caruso and Jordan were reinstated or recalled during the weeks ending December 23, 1971, and February 25, respectively. 2 References herein are as follows: The General Counsel, unless otherwise stated or required by the context, his representative at the hearing; Food Fair Stores, Inc., Respondent, the Employer or the Company; Clarence McGrath, the Charging Party; Food Drivers, Helpers and Warehousemen Employees Local 500, the Union or Local 500; the 347 former or substantially equivalent positions because they had participated in protected concerted activities, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7, and engaging in unfair labor practices, in violation of Section 8(axl) of the Act .2 Respondent's amended answer admits the procedural and jurisdictional allegations of the complaint and the supervisory status of its managerial employees but denies generally and specifically the remaining allegations. Specif- ically, Respondent denies that it discharged, terminated, or refused to reinstate or recall the alleged discriminatees, and denies that said persons had been engaging in protected concerted activities because they had participated in an unauthorized work stoppage in violation of collective- bargaining agreement, and had resorted to the work stoppage and picketing to induce and force other employ- ees of Respondent, as well as carriers and drivers of said carriers, to refuse to perform services for Respondent. Hearing was held before me on July 31 and August 1, 2, 3, and 4, 1972, at Philadelphia, Pennsylvania. All parties appeared and were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documentary evidence relevant and material to the issues, to argue orally and file briefs and proposed findings of fact and conclusions of law. Respondent argued orally on the record, but the General Counsel waived oral argument, preferring to rely on his brief. Pursuant to an extension of time duly granted, the General Counsel and Respondent filed briefs on September 18, 1972.3 Respondent simultaneously filed proposed findings of fact and conclusions of law. They are disposed of in accordance with the findings and conclu- sions of law hereinafter made. Upon the entire record in the case, and based upon the appearance and demeanor of the witnesses, and the briefs of the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint alleges, Respondent's amended answer admits, and it is hereby found that, at all times material herein, Food Fair Stores, Inc., Respondent herein, a corporation duly organized under the laws of the Com- monwealth of Pennsylvania, with its principal place of business in Philadelphia, Pennsylvania, has been engaged in the operation of food markets. During the year preceding issuance of the complaint, Respondent's total volume of business exceeded $500,000, and during the corresponding period, Respondent pur- National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151, et seq.), the Act; the National Labor Relations Board, the Board. The charge was filed on November 23, 1971, and duly served on Respondent. Unless otherwise indicated or required by the context all dates are in 1971. 3 On September 21, 1972, Respondent, without prior permission, filed a reply brief. On September 27, the General Counsel filed a written objection on the ground that the Board's Rules and Regulations make no provision for the filing of reply briefs, and requested a similar opportunity to file such a brief if Respondent were permitted to do so. Respondent's reply brief has not been considered in reaching the decision in this case. 202 NLRB No. 51 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chased goods valued in excess of $50,000 directly from suppliers located outside the Commonwealth of Pennsylva- nia. It is, therefore, found, on the basis of the foregoing and upon the entire record, that, at all times material herein, Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Food Drivers, Helpers & Warehousemen Employees, Local 500, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union or Local 500, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction Respondent operates a food distribution center located at 11th Street and Pattison Avenue, Philadelphia, from which it supplies its retail stores in Pennsylvania and southern New Jersey. The center, occupying a city block, comprises a large warehouse situated on the southern half of the block, and a loading and parking area for tractor- trailer trucks, covering the northern half of the site. The truck entrance, some 50 feet wide, is located on the Darien Street or east side of the premises; the employee entrance, 30 to 40 feet wide, is on the 11th Street or west side. Respondent employs a substantial number of warehouse- men, represented by Teamsters Local 169, and some 200 permanent or regular full-time truckdrivers, in addition to 20 or 30 casual truckdrivers (as of November 1971), represented by Teamsters Local 500, whose members had previously been represented by Highway Truck Drivers and Helpers, Local No. 107. Respondent and Local 500 are parties to a collective- bargaining agreement, designated as the Master Food Agreement, between Food Employers' Labor Relations, Inc. (FELR), representing 18 employers, including Re- spondent, and 4 local unions, including Local 500,4 covering the term January 1, 1971, to December 31, 1973, automatically renewable annually thereafter in the absence of specified notice. Although casual truckdrivers, as such, are not specifical- ly mentioned in article 1, Scope of Agreement, and article 2, Union Security, section 1, Recognition, the record leaves 4 The remaining locals are Produce, Poultry, Fish and Oystermen Drivers and Helpers, Local No 929, General Teamsters, Chauffeurs, Helpers and Yardmen, Local No. 470, and Truck Drivers and Helpers Local 676, all affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America The prior Master Food Agreement, covering the period January 1, 1968 to December 31, 1970, with 21 employer signatories, including Respondent, named Highway Truck Drivers and Helpers, Local No. 107, predecessor of Local 500, as a party,to the agreement 5 Art 5, Seniority Principles, sec 2. Seniority Rank and Posting, provides, in pertinent part After he has worked for an Employer at least thirty (30) days during any ninety (90) consecutive calendar days, an employee shall gain seniority status and his seniority date on the seniority list shall revert to no doubt that they are covered by the agreement. With regard to wage scales, health and welfare contributions, union security, and dues deductions, they work, when assigned, under substantially the same terms and condi- tions as permanent truckdrivers. The casuals, however, do not acquire permanent status or seniority.5 Respondent has maintained a roster of casual truckdriv- ers, which it uses as a source of replacements for regular drivers who may be absent or on vacation. Prior to November 1971, at least until June of that year, the casual roster had been compiled in some semblance of seniority, roughly based on the date the casual was first hired, and casuals were dispatched generally in that order. During this period, between 25 and 30 casuals worked for Respondent on a more or less steady basis. Early in June 1971, however, according to Head Shop Steward Edward Emberger's undisputed and credited testimony, Union Secretary-Treasurer William Brown notified Emberger that he was not to dispatch casuals from the list on the basis of "seniority." Brown also removed the list, which had been posted at the union headquarters. Since June, Respondent has called and dispatched casuals without regard to their previous length of service. Frequently casuals will call Respondent to inquire if work is available. They have no regular starting time and when called may work anywhere from 1 to 4 days at a time, depending on Respondent's requirements. Each casual employee who is called is required to complete a printed form, entitled "Casual Employee Notice," setting forth the name of the "casual" employee, the date, the name of the employee being replaced, the reason for the replacement (on vacation or absent), and acknowledging that the casual is being dispatched in conformity with article V, section 2, paragraph 4 of the Master Food Agreement. Copies of the notice are furnished the shop steward and the union business agent. Of the 20 to 30 casuals whose names appeared on the list, some had worked for Respondent over a period of 2 years; others, for a matter of months. Dissatisfaction was rife among these men because of their inability to achieve permanent status. Further discontent stemmed from their claim that they had been denied resort to the grievance procedure, having allegedly been advised by their union that they had no right to file grievances, except with regard to "monetary" matters. Nevertheless some of their com- plaints were adjusted between the shop steward and company representatives, if only temporarily. The casuals, however, sought to persuade the Company to grant permanent status to casuals, with appropriate seniority, the first day of his ninety (90) day qualification period. No Employer shall be permitted to deprive a qualified employee of the right to gain seniority status by any subterfuge or by any refusal to hire such qualified employee when work is available. Employer shall submit to the Local Union together with a copy of their monthly welfare and pension report a list of extra men who worked during the preceding month. The list shall contain the names of such extra men, with Social Security numbers, days worked, and monies earned An employee hired as a casual worker such as a vacation replacement or a replacement for absenteeism shall not become a seniority employee. A replacement for absenteeism is eligible for holiday pay after sixty (60) days of work, provided he works three (3) days in the holiday week FOOD FAIR STORES, INC. notwithstanding the seniority provisions of the contract, to those in the group with longer service, a practice which they claimed Respondent had followed until the past 2 years.6 B. Events Culminating in the Work Stoppage On Saturday, November 6, between 14 and 18 casual drivers assembled to review their grievance against the Company. As already mentioned, uppermost among these was their frustration in achieving permanent status as truckdrivers. Other complaints related to the Company's requirement that they sign casual employee forms which did not contain the name of the employee being replaced, and that they sign these forms in blank when working Saturdays (not regular workdays), thereby depriving casuals of the opportunity of acquiring eligibility for permanent status; depriving casuals of holiday pay by denying them employment for 3 days during a given holiday week; dispatching drivers from the casual list without regard to their prior length of service; and denying them the opportunity of accumulating sufficient days of work in a given quarterly period so as to render them ineligible for health and welfare benefits. The men decided to confer with Shop Steward Emberger about their complaints. Next day, Sunday, November 7, the group met with Emberger at his home. After a general discussion of their problems, Emberger agreed to arrange a meeting with the union representatives. The meeting was held at union headquarters on November 16. Present were Secretary- Treasurer William Brown, Vice President William O'Far- rell, Shop Steward Emberger, and substantially all the casuals named in the complaint. Emberger and Gerald Cohen, a casual driver, who was one of the most outspoken members of the group, reiterated their grievances. Brown announced that there was nothing the Union could do for them. When it was suggested that an effort be made to arrange a meeting with the Company, O'Farrell placed a call for Robert J. McIntyre, Respondent's assistant director of industrial relations, but was unable to reach him. Either at this meeting or one the following day, mention was made of a "demonstration" to be conducted at the Food Center to register their protest. After the meeting, Emberger and O'Farrell (and proba- bly Brown) remained behind to await a call from McIntyre. When McIntyre did not return the call, O'Farrell called him again, and requested a meeting. McIntyre suggested a meeting Friday, November 19.7 O'Farrell told McIntyre that unless a meeting were held, the casuals might "demonstrate" the following night. 6 That Respondent had recognized the right of casuals to file grievances, including the right to acquire seniority as regular full-time truckdrivers, is evident from settlement between the Company and Local 500, on March 23, 1970, of a grievance which had proceeded as far as arbitration. The grievance, filed by the Union on behalf of seven casual employees, was withdrawn from arbitration and settled by assigning six of them "as permanent drivers on the seniority list . . . and slotted in on such list in accordance with their original date of hire by the Company as casual employees," without backpay. The remaining employee was denied permanent status, as well as reemployment rights, without backpay for time lost. The settlement agreement which , by its terms, provided that it superseded any past practice between the parties or any arbitration award inconsistent with it, further provided: 349 According to McIntyre, O'Farrell told him that he did not know whether he could "hold these people because they have said that unless they get an answer right away, they are going to pull the doors down." McIntyre replied, "Well, Bill, I want to make one thing very clear to you that if they do, you can forget any meeting on Friday until we resume operations. I will not negotiate or meet with you on this kind of problem with a gun at my head." McIntyre also reminded O'Farrell that, as union officials, he and Brown had an obligation under the contract to ensure that there was no interruption in the Company's operations, and told him that if he expected any problem in that regard it was incumbent on him personally to see that it was resolved. O'Farrell assured him that he would do every- thing possible to "keep the people in line." Next day, some of the casuals who had been awaiting an answer to their request for a meeting with the Company, called the Union. When they learned that nothing had materialized, they set about preparing picket signs for use in their forthcoming "demonstration." Legends on the picket signs read, "Food Fair Unfair to Casual Drivers," "Protesting Against Food Fair," and "Food Fair Unjust in Treatment of Casual Drivers." On November 17, between 8:30 and 10 p.m., some 18 casual drivers began picketing both the employee entrance on 11th Street and the truck entrance (used by supervisory personnel) on Darien Street. Estimates as to the number of pickets at either gate at any given time varied from 4 to 12. Except for the testimony of Robert L. Jones, director of distribution for the Food Center, detailed later, the record generally establishes that the picketing was peaceful and orderly and that warehouse employees, truckdrivers, and other personnel, as well as drivers of contract carriers, later mentioned, were permitted ingress and egress without hindrance or interference. Beginning at about 8 o'clock on the night of November 17, drivers regularly scheduled to report for work began calling the dispatchers to say that they would not be in. Danford F. Fletcher, lead dispatcher supervisor, Richard N. Pellulo, trucking supervisor, and Dispatcher Richard Medoff, were on duty on the 4 p.m. to 12 midnight shift. Earlier that day, at 4 o'clock, 10 regular drivers, the usual number, had reported for work and were dispatched. At 9 p.m., four regular drivers, again, the usual number, reported and were dispatched. The next crew, consisting of approximately eight drivers and four helpers, was sched- uled to report at 10 p.m. None of these reported. At I1 p.m., approximately 10 drivers and 8 helpers were due, with another 12 drivers and 10 helpers scheduled to report at midnight. Only two drivers, presumably Seabrooks and 4. It is agreed that the Company shall have the right to select casual employees in any order at its discretion for casual employment when they are employed by the Company without regard to their length of service and to select from among such persons in any order at its discretion in filling permanent driver jobs without regard to their length of service. The fact that Respondent later selected four casuals with the longest service for employment as "jockeys" to handle the fueling of tractors for a period of 8 months, when the practice was abandoned , did not constitute a waiver of this provision. 7 McIntyre testified that he was faced with a November 17 deadline for negotiations with another union, not involved in this proceeding, and that Friday was the earliest day he could meet with the Union. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pugh, reported and were dispatched as a team as driver and helper. None of the remaining drivers or helpers reported for the 11 o'clock or midnight shifts. Two additional regular drivers, scheduled to report at 1 p.m., failed to appear. At 10 p.m., Fletcher himself attempted to reach four casuals, who were needed as extra drivers, besides those already scheduled as regular drivers, but was unable to reach any of the casuals. Between 4 p.m., on November 17, and 4:30 p.m. November 18, only one casual driver, William Barrett (who later appeared on the picket line) had called at about 8 p.m. on November 17, to request work. Rumors of a possible work stoppage had reached the company officials sometime during the day on November 17. Shortly after the picketing began, Fletcher was notified by the security guards about what was taking place. On previous instructions from Armand D'Onofrio, trucking superintendent in charge of the Company's entire trucking operations at the Food Center, Fletcher called him to report the state of affairs. D'Onofrio instructed him to take matters in stride. At about 10 p.m., Union Representatives Brown and O'Farrell, accompanied by Shop Steward Emberger, went to the trucking office and asked for the person in charge. When Fletcher told them that he was in charge, Brown asked him if John Batti, Fletcher's immediate superior, and D'Onofrio were in. Told they were not, Brown said that he wanted someone from management to accompany his group to the gates. Fletcher said that he would have to contact D'Onofrio. When he did so, D'Onofno instructed him to comply with Brown's request, and to have Pellulo accompany him. The union representative, accompanied by Fletcher and Pellulo, proceeded to the employees' gate, where 10 or 12 casuals were picketing. In the presence of the company representatives, Brown announced to the pickets that their activities were unauthorized and not sanctioned by the Union, and told them to disperse. The pickets, with apparent sarcasm, thanked Brown and continued picket- ing. The union officials and the company representatives then went to the truck entrance on Darien Street, where Brown repeated what he had told the other pickets, namely, that their activities were unsanctioned by the Union. Batti learned of the work stoppage from D'Onofrio at about 9 o'clock in the evening on November 17. He drove through the employees' gate without incident, and met D'Onofno at the garage at about 9:45. According to Batti, D'Onofrio told him that Brown had notified the pickets that they were engaged in an unlawful work stoppage and that they should disperse. Batti then walked to the employee entrance, and later to the truck entrance, and admonished the pickets to "picket properly" and not interfere with any employees or trucks using the entrances. Various casuals, as well as Shop Steward Emberger, testified that after Brown stated to the pickets that they were engaged in an unauthorized work stoppage,, Batti announced that if the pickets did not go to work, they were "done" or "through." Batti, who denied that he was present at any time while Brown was there, at first, denied telling the casuals that their employment was terminated or that they were discharged because they were engaging in an unauthorized work stoppage. Almost immediately afterward, he testified that he had no recollection of having made the statement. This conflict will be discussed later. At about 1 or 1:30 next morning, November 18, as Batti was driving through the employees' gate, he observed Thomas E. Davis, union night steward, among the pickets. Batti continued through the gate to the street, and beckoned to Davis. When Davis joined him, Batti spoke of the seriousness of the situation and expressed a desire to resolve the problem. He proposed that Davis attempt to persuade the casuals to go to work, and assured him that if they did the Company would take no disciplinary action of any nature, and would absorb the cost of the 5- or 6-hour delay which had been incurred. According to Davis, he asked Batti whether in the future casuals would be dispatched "by semority." Batti said that he could not agree to that. Batti told Davis that he would be at home and that Davis could call him within the next half hour to let him know what decision the men had reached. Davis agreed to talk to the men and told Batti that if they decided to go to work he would call him. Davis did not call Batti. Beginning about 8:00 o'clock on the morning of November 18, Respondent, through Traffic Manager Leonard Schaffel and Truck Operations Manager Batti made arrangements with six independent carriers to perform hauling services. These carriers were used during the remainder of the work stoppage, and continously thereafter as late as January. The casuals continued picketing throughout the remain- der of the night and the following day until about 3:30 in the afternoon, when 18 of them were served with a state court injunction, and the picketing terminated.s The first carriers began moving goods by 9:30 the same morning. Despite Director of Distribution Jones' instructions to Batti not to use any of the casuals who had engaged in the work stoppage unless it was absolutely essential to the operation of the center, Batti actually used two or three casuals after January, and a total of seven as of the date of the hearing. The record leaves no doubt that the casuals here involved engaged in an unauthorized work stoppage to achieve economic objectives, without resorting to the grievance procedure provided for in the contract, in violation of the no-strike clause. The record further establishes that the work stoppage lasted less than 24 hours, from between 8:30 and 10 p.m., November 17, to between 3:30 and 4 o'clock the next day. The evidence based on the credible testimony of various casuals, that they were familiar with the contents of the 24-hour provision, and that they had been advised by the Union of the import of the provision, warrants the further finding that the casuals did not intend to continue the work stoppage and picketing beyond the 24-hour period even if they had not been served with the injunction. The issue to 8 It was stipulated that on November 18, 1972, preliminary injunction violation of the no-stoke provision of the contract, and that the injunction against picketing was issued at the behest of Respondent by the Court of was dissolved on February 7, 1972. Common Pleas of Philadelphia County, based solely on the alleged FOOD FAIR STORES, INC. be determined is whether the 24-hour clause deprived Respondent of the right to discharge, or discipline the employees by action short of discharge, for engaging in the unauthorized work stoppage. C. The Applicable Provisions of the Collective- Bargaining Agreement ARTICLE 28 Mutual Guarantees Section 5. All grievances shall be processed in orderly fashion through the steps provided in Article 8 of this Agreement. There shall be no threats by any Steward, Business Agent, Employer or his representative. There shall be no work stoppages or threats thereof except as specifically permitted under the provisions of Article 8. s s s s s ARTICLE 8 Grievance and Arbitration Procedure Section 9. It is further mutually agreed that the Local Union will within two (2) weeks of the date of the signing of this Agreement serve upon the Employer a written notice, which notice will list the Union's authorized representatives having the sole authority to act for the Union in calling or instituting strikes or any stoppage of work which are not in violation of this Agreement and the Union shall not be liable for any activities unless so authorized. It is further agreed that in all cases of an unauthorized strike, slowdown, walk out or any unauthorized cessation of work in violation of this Agreement, the Union shall not be liable for damages resulting from such unauthorized acts of its members. While the Union shall undertake every reasonable means to induce such employees to return to their jobs during any such period of unauthorized stoppage of work mentioned above, it is specifically understood and agreed that the Employer, during the first twenty-four (24) hour period of such unauthorized work stoppage, shall have the sole and complete right of reasonable discipline short of discharge and such union members shall not be entitled to or have any recourse to any other provisions of this Agreement. After the first twenty-four (24) hour period of such stoppage and if such stoppage continues, however, the Employer shall have the sole and complete right to immediately discharge any Union member participating in any unauthorized strike, slowdown, walk out, or any other cessation of work, and such Union member shall not be entitled to or have any recourse to any other provisions of this Agreement. (Emphasis supplied.) ARTICLE 11 Discharge or Suspension Section 1 . Cause for Dismissal or Suspension 351 No employee may be dismissed or suspended without just cause, except for lack of business. Nothing shall prohibit Union from investigating any dismissale or suspension and resorting to the grievance procedure provided in Article 8. Until the case has been discussed with the Business Agent, no employee may be dismissed or suspended except (a) where lack of business causes the dismissal or suspension, or (b) where the provisions of this Article provide for immediate discharge. The parties agree that causes for dismissal without first discussing the matter with the Business Agent, shall be the following. 1. Calling an unauthorized strike or walkout. s s s Section 2. Company Rules Employer may establish such company rules as he deems necessary or desirable, provided that such rules are not in conflict with the terms and provisions of this Agreement. A copy of such rules shall be sent promptly to the Union. Union and FELR have agreed upon Uniform Food Industry Rules which are made a part of this Agreement. Uniform Rules and Regulations for Member Companies of Food Employer's Labor Relations, Inc. The following Rules and Regulations and the penalties to be charged for violations of same are placed into effect so that all employees of the Employer may know what duties are required of them in the general conduct of the Employer's business. Nothing in these Rules and Regulations shall abrogate the employee's right through the Union to challenge a penalty through the regular grievance machinery. Rules and Regulations herein contained shall not supersede any Rules or Regulations of the contract itself. s s s s « (3) CONDUCT 11 (b) Calling an unauthorized stoppage, strike or walkout-Subject to discharge. [Emphasis supplied.] Contentions of the Parties Initially, the General Counsel contends that the casual employees are not covered by the Master Food Agreement, primarily because of their claim that they have been denied recourse to the grievance and arbitration machinery, and that the Union consequently had no authority to waive their right to strike. The General Counsel maintains, however, that assuming the casuals are covered by the 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract, the Union has not waived their right to engage in unauthorized work stoppages of less than 24 hours' duration. Respondent, on the other hand, asserts that the casuals are covered by the contract and, like other employees, are entitled to certain benefits and subject to the obligations imposed by the collective-bargaining agreement. Further- more, Respondent argues, the casual employees engaged in an unauthorized work stoppage, which, while lasting less than 24 hours, was, nevertheless, in violation of the plain provisions of article 28, section 5, forbidding work stoppages, "except as specifically permitted under the provisions of Article 8." (grievance and arbitration.) In this regard, Respondent maintains that article 8, section 9, quoted above, does not affirmatively grant employees the right to engage in an unauthorized strike or work stoppage, clearly prohibited by article 28, section 5, but, in effect, "reinforces" the general prohibition against work stoppages of any kind, and merely provides grievance machinery under which reasonableness of Respondent's discipline "short of discharge" may be determined. The General Counsel's contention that casuals are arguably not covered by the contract is lacking in merit. Their wage scales and hours of work are regulated by the labor contract; health and welfare contributions are made by the Employer on their behalf; they are subject to the union-security provisions; and, in general, they are treated like permanent drivers, except that they acquire no seniority for purposes of permanent employment. (See art. 5, sec. 2 supra, fn. 5.) Moreover, the fact that they seek in this proceeding to avail themselves of the purported protection of the 24-hour clause contained in article 8, section 9, attests to the fact that the casuals recognize that they are subject to the terms of the Master Food Agreement. The casuals, and the General Counsel on their behalf, contend, however, that in the past they have been denied the protection of the grievance and arbitration procedure (except with regard to "monetary" issues), and that the Union could not have waived their nght to strike since, as a concomitant of such a waiver, employees must be afforded access to grievance and arbitration procedure. The contention that casual drivers were denied access to the grievance procedure is not borne out by the record. The record fairly establishes that shop stewards have actually presented grievances, albeit orally and informally, with favorable results, without resorting to the formal grievance procedure. More importantly, at least one formal griev- ance, involving the very issue for which the casuals engaged in the work stoppage, was carried to the arbitration stage and settled, without the intervention of the arbitrator, by achieving what the casuals sought to accomplish here, namely, the assignment of casual drivers as permanent divers on the seniority list. (See, fn. 6.) The casual employees here, however, testified that they were informed by Union Representative Brown that because of their status as casuals they had no right to file 9 The General Counsel contends that under art 11, sec I (discharge or suspension), as well as the rules and regulations, only the calling of an unauthorized strike constitutes cause for immediate discharge Since it has not been shown which of the employees actually called the stake, he argues that the casuals cannot be held responsible for the action taken This is any grievances for any but "monetary" reasons. Neither Brown nor O'Farrell testified in this proceeding but, assuming that the casuals were so informed, the record establishes that the Union has, in fact, presented at least one formal grievance on behalf of the casuals, as has already been seen. Moreover, even if the umon representatives may have mistakenly informed the casuals that they were not covered by the grievance procedure (except for monetary issues), Respondent cannot be charged with refusal to process grievances because of the Union's possible dereliction in submitting grievances on behalf of the casuals. It is, therefore, found that the casual drivers were covered by the Master Food Agreement and by the grievance and arbitration procedure provided thereunder. Proceeding to a consideration of the action taken by the casuals on November 17 and 18, despite the use of the euphemism "demonstration," it cannot be denied that their action amounted to a complete withholding of services hence, a strike or work stoppage. Nor can it be denied that the stoppage was in violation of article 28, section 5, unless permitted under the provisions of article 8, section 9 (the grievance procedure). Furthermore, it is undisputed that the work stoppage was unauthorized by the Union, and that the casuals were so notified by the umon representa- tive in the presence of management officials. Article 11, section 1 (discharge or suspension) expressly permits dismissal or suspension of employees in instances where the provisions of the article provide for immediate discharge, such as the calling of an unauthorized strike.9 This right of the Employer to discharge employees for calling an unauthorized stoppage, strike, or walkout is further reaffirmed by the rules and regulations annexed to and made part of the agreement. It should be noted parenthetically that under article 11, section 1 , as well as under the rules and regulations, the right of the Union to resort to the grievance procedure and to challenge any penalty imposed is preserved. The gravamen of the General Counsel's case, however, is that Respondent unlawfully discharged the casuals who engaged in the unauthorized walkout which lasted no more than 24 hours, contrary to the provisions of the so-called 24-hour clause contained in the grievance procedure. This assumes that the discipline imposed by Respondent exceeded the permissible penalty for unauthorized strikes of less than 24 hours duration, since under these provisions Respondent may impose only "reasonable discipline short of discharge." This approach would ignore the other pertinent provisions of the labor agreement recognizing Respondent's right to discharge for calling an authorized stoppage, strike, or walkout. Respondent contends however, that the 24-hour clause of article 8, section 9 may not be construed as authorizing a work stoppage, which is prohibited in article 28, section 5, except as specifically permitted under the provisions of article 8. The only work stoppage permitted in article 8, according to Respondent, appears in section 7, permitting unduly narrow and technical interpretation of the phrase. It is evident that this language was intended to outlaw unauthorized stokes not merely the calling of such strikes In any event, the record amply establishes that the casuals acted concertedly in their decision to "demonstrate," and to that extent, it may be said that they called the stoke by common consent FOOD FAIR STORES, INC. a work stoppage only upon the failure to comply with an arbitrator's award within 10 days after receipt thereof.10 Thus, Respondent maintains that the unauthorized work stoppage mentioned in the 24-hour provision in article 8, section 9 is not to be construed as within the exception provided for in article 28, section 5. Stated differently, the argument runs that the 24-hour clause cannot convert an unauthorized work stoppage into protected activity in the face of the general prohibition against work stoppages of any kind. Had the parties intended, Respondent argues, that the 24-hour clause should further restrict Respondent's right to immediate discharge, contained in article 11, section 1, or as an exception to the no-strike clause contained in article 28, section 5, they would have inserted such an exception to the immediate right to discharge in article 11, section 1, the provision dealing with cause for dismissal. Instead, the parties inserted the 24-hour provision in the grievance and arbitration provisions of the contract. Thus, Respondent maintains, the 24-clause was in no way intended to restrict its right of immediate discharge for an unauthorized work stoppage, but merely to limit the right of an employee engaging in such action to have recourse to the grievance machinery. This construction is supported, according to Respon- dent, by the fact that in article 8, section 9 Respondent relinquished its right to hold the Union responsible for unauthorized work stoppages. Respondent argues that the Union had a very considerable stake in being absolved of any possible liability for wildcat strikes, and that it agreed to the 24-hour clause as a quid pro quo for the release from any such possible claim. In further support of its interpretation of the 24-hour provisions, Respondent introduced evidence, received over the General Counsel's strenuous objection," of discussions between Assistant Director of Industrial Relations McIn- tyre and Union Secretary-Treasurer Brown, on December 31, 1970, during the last of some 14 negotiating sessions, culminating in the agreement, that the Union's proposed 24-hour clause was merely intended to deny employees engaging in unauthorized work stoppages access to the grievance machinery under the stated conditions. Accord- ing to McIntyre's undemed testimony, Brown expressed concern regarding unauthorized work stoppages which might undermine the Union's authority in view of the rash of wildcat strikes which had occurred while Highway Drivers Local 107 had represented Respondent's drivers. Agreeing with Brown's approach, McIntyre proposed that the Union agree to deny access to the grievance machinery to any employee discharged for engaging in an unauthor- ized work stoppage, regardless of its duration. Brown refused and stated, according to McIntyre, that during the first 24 hours of an unauthorized work stoppage Respon- dent would have the right to discharge employees engaging in such conduct, and the employee would be relegated to 10 Sec Treads The decision of the arbitrator shall be final and binding upon all parties Failure to comply with arbitrator's award within ten (10) days after receipt thereof shall permit either party legal and economic recourse 11 The objection, renewed in the General Counsel's brief, was on the ground that receipt of this evidence violated the parol evidence rule The 353 the grievance procedure. Thus, Respondent contends, the 24-hour clause does not restrict its right to discharge employees engaging in an unauthorized work stoppage, in view of the "sole and complete right" granted the Employer to take the specified action without the right of the employees to have "recourse to any other provisions" of the agreement. In the event of work stoppages lasting longer than 24 hours, striking employees would be denied recourse to the grievance procedure. If this is the result the parties indeed intended, it is not reflected in the language of the provision, which makes no distinction between unauthorized strikes of less than 24 hours' duration and those exceeding that period, insofar as the consequences to the employees are concerned. To this extent, the under- standing purportedly reached with the union representative is at variance with the provisions of the 24-hour clause, and constitutes an attempt to vary its terms. No reliance, therefore, is placed on McIntyre's testimony regarding the alleged understanding. Respondent's position that it had an unqualified right to discharge employees engaging in an unauthorized work stoppage of less than 24 hours' duration, subject only to recourse to the grievance procedure, fails to take into account the full import of the proviso to article 28, section 5. To contend that the placement of the 24-hour clause in the grievance provisions rather than in the section dealing with the no-strike provisions or in the one setting forth the causes for immediate discharge requires a finding that the parties did not intend to restrict Respondent's right to discharge employees engaging in unauthorized strikes of less than 24 hours, would be to exalt form over substance. Reasonably interpreted and viewed in light of the evident purpose of the provision, it is found that the proviso excludes from the prohibition against work stoppages those of less than 24 hours as a cause for immediate discharge. Respondent contends that the Board erred in Wagoner Transportation,12 on which the General Counsel relies, but, in any event, attempts to distinguish the case. The 24-hour clause is substantially identical in both cases. There the Board, adopting the decision of the Trial Examiner, held . although unauthorized strikes are outlawed by the Master Agreement, it is clear from the Agreement itself that the parties agreed that the extreme penalty of discharge would not be applicable to employees who participate in unauthorized strikes of less than 24 hours' duration, as the Agreement gives the Respon- dent as an Employer only the right to impose "reasonable discipline short of discharge" upon such employees. It is accordingly held that to the extent that the Agreement prohibited the Respondent from exact- ing the extreme penalty of discharge on employee- participants in wildcat strikes of less than 24 hours' duration, such strikes are protected activities under the provisions of Section 7 of the Act which guarantees to employees the right to engage in "concerted activities evidence was received , and has been considered, not to vary the terms of the labor contract, but for such aid as it may afford in resolving any ambiguity in the language of the 24-hour clause or possible incompatibility with other pertinent provisions of the contract 12 Wagoner Transportation Company, 177 NLRB 452, enfd. (per cur,am) 424 F 2d 628 (C A 6) 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose of collective bargaining or other mutual aid or protection." Respondent attempts to distinguish this case on the ground that the master agreement in the Wagoner case, a copy of which was introduced in this proceeding, contains no explicit provision in the comparable discharge clause, permitting immediate discharge for the calling of an unauthorized strike. Similarly, Respondent points out, the uniform rules and regulations, appearing in the so-called Michigan Rider, contain no mention of the right to immediate discharge for unauthorized strikes. Granted these differences, it is evident that in reaching its decision the Board acted on the premise that the Employer would have been entitled to discharge employees engaged in an unauthorized stake in violation of the no-strike clause, were it not for the language of the 24-hour provision. It is, therefore, found that the absence of any express provision in the Wagoner contract authorizing the Employer to discharge any employee engaging in a wildcat strike does not require a contrary result.13 Respondent further argues that to adopt the interpreta- tion of the General Counsel regarding the 24-hour clause would render it possible for employees to engage in a series of intermittent wildcat strikes, provided only that each stoppage were terminated within 24 hours. Conceivably such a result is possible, but it must be assumed that the parties were cognizant of the risk when they agreed on the clause, and it is not within our province to reform the contract freely entered into by the parties. Moreover, in such an eventuality, the Employer could resort to other remedies, including the grievance procedure. In any event, the possibility of such recurring wildcat strikes did not deter the Board from finding in the Wagoner case, that, under the 24-hour clause of the contract there, the Employer could not exact the extreme penalty of discharge for unauthorized strikes of less than 24 hours' duration. Respondent maintains, however, that, although it had the right, under the applicable provisions of the contract, to discharge the casuals who engaged in the unauthorized work stoppage of less than 24 hours, the discipline which it imposed constituted no more than "reasonable discipline short of discharge." To begin with, there is a direct conflict in the testimony as to whether Dispatchers Fletcher and Pellulo notified the picketing casuals that they were discharged. Although both were admitted supervisors, they denied that they had authority to discharge casual drivers, except under very limited circumstances, such as where their competence as truckdrivers was involved. Nevertheless, in view of their supervisory status, their statement or threat of discharge, if actually made, would constitute interference, restraint, or coercion, even though they may have had no authority to effect actual discharges. In view of their lack of authority 13 It has been noted that, in the recent case of National Tea Company, Standard Grocery Division, 198 NLRB No 62, Trial Examiner (now Administrative Law Judge) George L Powell arrived at the result argued for by Respondent here, but recommended that the Board defer to the tribunal's award The Board did so without reaching the merits of the case. With all due deference, I must respectfully disagree with the Administrative Law Judge's decision on the merits 14 Although Cohen had taken an active part in the events culminating in the strike, it was not shown that Respondent was aware of this Cohen testified, however, that earlier that month he had protested to one of the to discharge, and in view of the exceptional circumstances existing in regard to the unauthorized stoppage, it is highly improbable that Fletcher and Pellulo would have assumed authority to make such a critical decision without instruc- tions from top level management. It is found that they did not notify the casual pickets that they were discharged. More serious, however, is the charge that on the night of November 17, Batti, Fletcher's immediate supervisor and D'Onofrio's subordinate, told the entire group of casuals that they were ternnated. According to Gerald Cohen, Batti and D'Onofno drove into the truck entrance on Darien Street and, after a discussion between the two men, Batti, with a sweeping gesture of his hand, told them, "You're all done," and, singling out Cohen, said, "And you, Cohen, you'll never work here again." 14 Without categorically denying Cohen's testimony, Batti, at first, denied telling the men that they were terminated, but later testified that he could not recall making such a statement. In any event, Batti later told Shop Steward Davis, as late as 1 a.m., November 18, that if the men returned to work no disciplinary action would be taken against them. Under these circumstances, it might be argued that, even assuming that Batti made the statement attributed to him by Cohen and other casuals, the statement was probably intended as no more than a tactical maneuver to persuade the casuals to go to work. It is conceded, however, as Batti and Jones testified, that on November 18, the Company decided that it would no longer call casuals involved in the work stoppage as substitute drivers unless it had no other alternative. Fletcher also testified that, after the termination of the strike, Batti and D'Onofno furnished him with a new list of casuals, which he believed did not contain the names of the casuals who had engaged in the unauthorized work stoppage. After first denying that he had made a list of the casuals picketing on November 17 and 18, when shown his pretrial affidavit, he conceded that he compiled such a list of names, probably after he returned to his office from the picket line. This evidence supports a finding that, by its decision not to call the casuals who had engaged in the work stoppage, unless it was unavoidable, Respondent evinced a determi- nation not to use these casuals in the future, thereby depriving them of any future opportunity for employment and, in effect, terminating their employment. Respondent denies, however, that these employees have actually been discharged, contending that the fact that they subsequently dispatched seven casual employees, who had engaged in the unauthorized work stoppage, negates any inference that the casuals were terminated. Respondent concedes that it has imposed an "extended suspension" on these casuals but maintains that this action constituted no more than reasonable discipline short of discharge. On the other dispatchers that another casual, Robert Driscoll, who had been working for Respondent nearly twice as long as Cohen, had not been called. According to Cohen, the dispatcher told him he would call "anybody" "whenever" he wanted On another occasion, when Cohen, who had already worked 2 days during a holiday week, called in and asked to be assigned in order to be eligible for holiday pay, Fletcher told him that there was work for him, but that he had been told not to use him When Cohen reported this to Business Agent Brown, the latter called Fletcher and threatened him with the filing of a grievance unless he used Cohen As a result, Cohen worked the third day that week and received the holiday pay FOOD FAIR STORES, INC. 355 hand, there was evidence from several of the casuals, including Cohen and McGrath, the Charging Party, that when the Company failed to call them after the strike ended, they called the Company to ask for work but were told that there was no work available, and finally abandoned their efforts. It will be recalled, however, that in consequence of the strike, Respondent had been obliged to resort to the use of independent carriers to perform the work previously done by the casuals. In order to obtain the services of the independent carriers, Respondent was obligated to make them a commitment that it would not discontinue the use of their services when the strike was terminated. Moreover, Respondent asserts that reduction in the operating sched- ules of its regular drivers and elimination of deliveries from the Food Center to Allentown and Reading, Pennsylvania, reduced its need for casual drivers. It is not surprising, therefore, that there may not have been enough work available to warrant hiring of casuals. Although the cost of operating with outside carriers was admittedly higher than it would have been to operate with casuals, Respondent justified the increased cost by the dependability of the carriers and increased efficiency of operation. The evidence idoes not warrant an inference that Respondent resorted to the use of outside carriers to penalize the casuals for their unauthorized walkout. As further indication that it did not discharge the casuals who engaged in the unauthorized work stoppage, Respon- dent points to its procedure under which it notifies the Union by telegram or letter in the event of discharge of permanent employees and, with regard to casuals, informs the Union that it is removing the casual from the list. That this procedure was not followed here may raise questions concerning Respondent's possible failure to comply with the contract, but furnishes no probative evidence to support its claim that the casuals were not actually terminated. It is, therefore, found that by the conduct of its responsible supervisors, including Batti's statements to the pickets, and the removal of the names of the striking casuals from the former roster, and establishing a new roster, and by failing to call all but seven of the casuals who had engaged in the work stoppage, Respondent has deprived the casuals of their former employment opportu- nities thereby, in effect, terminating their employment.15 As further justification for its action, Respondent asserts that the casuals engaged in picket line misconduct which warranted the discipline imposed. Jones testified that between 11 and 11:30 on the first night of the strike, he observed (from a considerable distance, it might be noted), a number of warehousemen, members of Local 169, "milling around" at the employees gate, where Local 500 members of both the trucking and garage group were congregated. Paul Hanlen, shop chairman for Local 169, was at the picket line to assure warehouse employees that they were not obliged to respect the picket line. Local 500 Business Representative Brown, who was also present, informed Local 169 employees that the work stoppage was unauthorized and did not affect them, and warehousemen were permitted to enter without incident. Jones remained at the center throughout that night and until 8 o'clock the following night. At various times during that interval, he testified, he observed pickets stopping vehicles at the entrance in an apparent effort to identify occupants of the vehicles. Jones concluded that this was done to determine whether the occupants were warehouse- men, in which case they were permitted to enter, or truckdrivers, who "turn[ed] around" without entenng.16 Jones further testified that he also observed pickets at the truck entrance converge on a "yellow tractor," allegedly belonging to one of the common carriers, whom Respon- dent had engaged after the work stoppage began, while members of the labor squad of the police department were seated in a vehicle at the side of the driveway. When Jones sought to have the police intervene, he was told that in the absence of an injunction or unless violence occurred, they could not intervene, and that drivers had the choice of entering or refraining from doing so. Some of the pickets, according to Jones, engaged drivers in conversation, while others remained standing in front of and on both sides of the tractor, without moving, until the driver left the scene. In addition, according to Jones, two regular drivers employed by Respondent, whom he identified as Sea- brooks and Pugh, and who had been dispatched by Zack Johnson, passed through the picket line. Pugh later went to the trucking office and, in Jones' presence, told Johnson that he had been threatened that "his head would get broken if he went out," presumably meaning if he drove a truck out. Both drivers, however, drove their trucks out without incident. According to Jones, no other regular drivers reported for work during the strike. The record generally establishes that, except for the foregoing incidents, drivers and others seeking access to the center, either through the employees' entrance or the truck entrance, were permitted to do so without hindrance. Those who sought information about the dispute were either directed to read the picket signs or informed of the grievances, and told that they were free to decide whether to enter the gates. Even on the basis of Jones' testimony, except for the hearsay testimony regarding the alleged threat of violence against Pugh, there was no probative evidence to establish that persons declining to enter the center were deterred from doing so by anything more than peaceful persuasion. Nor was there any identification of pickets who allegedly engaged in picket line misconduct. In any event, it has not been established that the action taken by Respondent against the casuals was prompted by any picket line misconduct. In addition to the alleged picket line misconduct, Respondent relies for its disciplinary action on the "staggering" effect of the casuals' wildcat strike upon its operations. Wholly apart from whether the pickets engaged in 15 It may be noted that, despite the interpretation of the 24-hour clause attributed by McIntyre to Brown, the Union declined to process a grievance for the action taken by Respondent against the casuals, and that McGrath, the Charging Party, filed an unfair labor practice charge against the Union for denying casuals fair representation The charge was subsequently withdrawn 16 According to Jones, he observed pickets "converge " on the car as soon as it came through the gate, and concluded that the pickets were attempting to establish the identity of the occupants He assumed that the occupants of cars which did enter contained truckdrivers. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "obstructive" tactics, Respondent argues that the picketing of Respondent's entrances was, at the very least, designed to attempt to persuade regular truckdnvers employed by Respondent, as well as outside carriers, to respect their picket line, as a means of exerting economic pressure on the Employer. Furthermore, Respondent emphasizes that the strike was deliberately called at a crucial time, the pre- Thanksgiving, Christmas, and New Year season. Accord- ing to Respondent, some 250,000 turkeys were to be delivered during this interval. Jones testified that the work stoppage resulted in a loss of sales of over $200,000; that the Company incurred further substantial expenses in procuring outside carriers to help handle the loads ordinarily handled during these periods; that for several hours after the strike began, warehousemen were idled; and that after the strike, Respondent was required to resort to overtime to make up the time lost because of the strike. Under these circumstances, Respondent argues, the failure to utilize all the casuals after the strike constituted no more than reasonable discipline short of discharge. Moreover, Respondent asserts, the reason casuals, calling in during the month or so after the strike was terminated, were told that there was no work for them was that Respondent had been obliged to keep its commitment to the outside camers, as well as to avoid similar occurrences of unauthorized work stoppages during the critical preholi- day period. Of course, if, despite their participation in the unauthor- ized strike, the casuals were, nevertheless, protected from discharge by reason of the 24-hour clause, the fact that Respondent's operation may have undergone serious disruption, loss of business, and extraordinary expense would not justify Respondent's action in terminating the casuals' employment status, though these factors might have a bearing if the action taken were construed as discipline short of discharge. Since it has already been found that the conduct in which Respondent engaged toward the striking casuals was tantamount to discharge, it is unnecessary to decide whether the conduct in which these employees engaged, and the consequences to the Employer resulting therefrom, afforded sufficient justifica- tion for removing these casuals from the roster and failing to call them after November 18. Upon the basis of the foregoing, and upon the entire record, it is hereby found that, by notifying the casual truckdrivers who engaged in the unauthorized work stoppage for a period of less than 24 hours that they were discharged; by removing the names of any or all of them from the roster of casual drivers and establishing a new roster; by admittedly failing and refusing to call or dispatch all but seven of said casuals after November 18; and by admittedly deciding not to dispatch any of said casuals who had engaged in the unauthorized stoppage unless it was essential to the normal operations of its Food Center, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.17 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, described 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 Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent penalized the casual employees who engaged in the unauthorized work stop- page on November 17-18, 1972, for a period of less than 24 hours, by notifying them that they were discharged; removing the names of some or all of them from the roster of casual drivers and establishing a new roster; admittedly failing and refusing to call or dispatch all but seven of said casuals after November 18, and deciding not to dispatch any of said casuals who had engaged in the unauthorized work stoppage unless it was essential to the normal operations of its Food Center, all in violation of Section 8(a)(1) of the Act. It will, therefore, be recommended that Respondent immediately restore each of said casuals who had engaged m the unauthorized work stoppage for less than 24 hours, to the roster of casual truckdrivers previously maintained by it, without prejudice to any of the rights and privileges previously enjoyed by them, and call and dispatch said casuals, as and when required, in the same manner and order in which casuals were called and dispatched as replacements for permanent or regular full-time truckdnv- ers prior to their unauthorized work stoppage, and make them whole for any loss of earnings they may have suffered by reason of Respondent's conduct, by payment to each of them of a sum of money equal to the amount he would have earned from the date the casuals were notified of their termination on November 17-18, 1971, until the date each shall have been notified that he has been restored to the roster of casual employees, less his net earnings during such period. Backpay together with interest at the rate of 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Food Fair Stores, Inc., Respondent herein, is, and at all times material herein has been, engaged in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 17 On the basis of these findings, Respondent's proposed findings of fact Proposed conclusion of law 4 is granted, 1, 2, 3, and 5 are denied 1, 2, 6, 9, 10, and 11 are granted, 3, 4, 5(a) and (c), 7, and 8 are denied FOOD FAIR STORES, INC. 357 2. Food Drivers, Helpers & Warehousemen Employees, Local 500, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the Union herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct, described above, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: 18 ORDER Food Fair Stores, Inc., Respondent herein, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to impose or imposing the penalty of discharge on employees for engaging in unauthorized work stoppages lasting less than 24 hours. (b) In any like or similar manner, interfering with, restraining, or coercing employees in the exercise of the rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Immediately restore each of the casual employees who engaged in the unauthorized work stoppage on November 17-18, for less than 24 hours, to the roster of casual truckdrivers previously maintained by it, without prejudice to any of the rights and privileges enjoyed by 18 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 19 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." them, and call and dispatch said casuals, as and when required, in the same manner and order in which casuals were called and dispatched as replacements for permanent or regular full-time truckdrivers prior to their unauthorized work stoppage, and make them whole for any loss of earnings they may have suffered by reason of the action taken against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due under the terms of this recommended Order. (c) Post at its Food Center in Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix"19 [the text of which is contained in the starred footnote below ]. Copies of the said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's duly authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps Respondent has taken to comply herewith. * The Appendix contained the following promises WE WILL not threaten to impose or impose the penalty of discharge on employees for engaging in unauthorized work stoppages lasting less than 24 hours WE WILL not in any like or similar manner interfere with, restrain, or coerce employees in the exercise of the rights to self-organization, to form, join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3), as guaranteed in Section 7 of the Act WE WILL immediately restore each of the casual employees who engaged in the unauthorized work stoppage on November 17-18, 1971, for less than 24 hours, to the roster of casual truckdrivers previously maintained by us, without prejudice to any of the rights and privileges enjoyed by them, and call and dispatch said casuals, as and when required by us, in the same manner and order in which casuals were called and dispatched as replacements for permanent or regular full-time truckdrrvers prior to their unauthorized work stoppage, and make them whole for any loss of earnings they may have suffered by reason of the action taken against them, in the manner set forth in the section of the Decision entitled "The Remedy " The casual truckdrivers referred to are Clarence McGrath, Raymond Brown, Samuel Ladd, Robert Driscoll, Anthony Vercio, Frank Buchinsky, Vernon Jordan, George Medica, Gerald Cohen, George Smith, Jr. Thomas Whelan, William Davis, Albert Evans, Joseph Dittus, Nicholas Fantozzi, E Connelly, R Mager, Bennie Bardaji, John Caruso, William Murtha. and William Barrett