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National Labor Relations Board v. Dominick's Finer Foods Inc.

November 2, 1966


Hastings, Chief Judge, Duffy, Senior Circuit Judge, Schnackenberg, Circuit Judge.

Author: Duffy

DUFFY, Senior Circuit Judge:

The National Labor Relations Board has petitioned for the enforcement of its order issued December 15, 1965, and reported at 156 NLRB No. 14.

The Board found that respondent violated Sections 8(a)(1) and (3) of the National Labor Relations Act as amended, 29 U.S.C.A. ยงยง 158(a)(1) and (3), by discharging Helen T. Avonts, and required, among other things, that Helen T. Avonts be reinstated to her former position, or one substantially equivalent thereto, and be made whole for any loss of pay she may have suffered.

Early in 1965, respondent operated seven stores in the Chicago area. In March and April 1965, it acquired three additional stores by purchasing the inventory and leasing the premises from E. J. Korvette, Inc. One of these three stores was located in Oak Lawn, Illinois, and was taken over by respondent on March 15, 1965.

The employees of all of respondent's stores were fully unionized. Respondent had maintained harmonious contractual relations with various local unions from different international unions without incident for many years. Respondent never had been charged with any unfair labor practice. No evidence was introduced which would indicate any union animus by respondent.

Helen T. Avonts, the charging party, was one of the approximately fifty employees of Korvette who were hired by respondent. She had acted as a checker for Korvette. She had been a steward under the Korvette union contract which provided for stewards.

The new contract which respondent had with the union relating to former employees of Korvette, made no provision for stewards, nor did any previous contract between respondent and various retail clerk unions have any such provision.

The new collective bargaining agreement which was entered into prior to respondent taking over the Korvette food stores provided in part that "During the first sixty (60) days of employment a new employee shall be on a trial basis and may be discharged at the discretion of the Company."

Henry Hentz was personnel director of respondent with supervision over all of their stores. Prior to the opening of the new store on March 15, he spoke to all of the former Korvette employees in groups of four or five at which time he advised that Dominick's would be their new employer and that all employees were being hired on a sixty-day trial basis. The employees were advised that they were starting as new employees.

Mr. Hentz informed Mrs. Avonts that under the terms of the new union contract she would not serve as steward in the manner in which she had done in the past, and if she wanted to be a union official, she would be doing it outside the Company.

On the morning of March 15, the day when respondent took over the Oak Lawn store, the cashiers attended an indoctrination meeting conducted by Hentz. One of the purposes of the meeting was to explain respondent's personnel practices and to tell what was expected of the cashiers. Among other things, they were told that since the cashiers were the only employees who had direct contact with the customers, it was essential that they smile and speak to the customers and have a neat personal appearance. All were reminded that they had been hired subject to the sixty-day trial period. Avonts did not attend the first part of the meeting as she remained at her cashier's register to check out customers already in the store. About half-way through the meeting, another employee was sent to relieve her so that she could attend the meeting. She did so. At the conclusion of the meeting all of the employees except Avonts were excused. Hentz explained to her what had transpired at the meeting prior to her arrival.

Two or three days later, Mrs. Avonts spoke to Hentz about two of her co-employees, stating that the salary of one was too low and the salary of the other was too high. Mr. Hentz checked into the matter, increased the salary of the low-paid employee and allowed the rate of the higher paid employee to remain.

On March 23, 1965, eight days after the opening of the Oak Lawn store, Philip Caponi, the store manager, discharged Helen Avonts. He testified he did so because Mrs. Avonts had a loud voice, used profanity and was offensive to her co-workers, and also because her general appearance and demeanor did not meet Dominick's standards for a cashier. Mr. Caponi said that to spare Mrs. Avonts' feelings, he told her she was being discharged for economic reasons. At that time, Caponi did not know that Mrs. Avonts had been a steward when ...

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