Dillon Stores, Div. of Dillon Co.

DILLON STORES, DIV. OF DILLON COMPANIES Dillon Stores, Division of Dillon Companies, Inc. and Amalagated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union 576. Case 17-CA-8079 March 29, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On December 19, 1978, Administrative Law Judge Irwin H. Socoloff issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief, and an an- swering brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Dillon Stores, Division of Dillon Companies, Inc., Topeka, Kansas, its officers, agents, successors, and assigns shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1962). we have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge: Upon charges filed January 23, and March 8, 1978, by Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union 576, herein referred to as the Union, against Dillon Stores, Division Dillon Compa- nies, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 17, issued a complaint dated March 13, 1978, alleging violations by Respondent of Section 8(a)(4), (3), and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respon- dent, by its answer, denied the commission of any unfair labor practices. Pursuant to notice, trial was held before me in Topeka, Kansas, on July 18 and August 15 and 16, 1978, at which all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Thereafter, the parties filed briefs which have been duly considered. Upon the entire record in this case, and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a Kansas corporation, is engaged in the op- eration of retail grocery stores located within and without the State of Kansas, including four stores situated in To- peka, Kansas. In the course and conduct of its business operations Respondent annually receives at its Kansas stores goods and materials valued in excess of $50,000 which are shipped from points located outside the State of Kansas. At the Topeka, Kansas, store involved herein (Store No. 50), Respondent annually derives gross revenues in excess of $500,000. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union 576, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background On January 7, 1978, Respondent discharged James P. Kuhn, a meat department employee at Store No. 50. In this proceeding, the General Counsel contends that Kuhn was discharged, in violation of Section 8(a)(3) and (4) of the Act, "because of said employee's support for, or activities on behalf of, the Union" and because he "was subpoenaed by the Union to appear, and did appear, at a post-election hearing . . . to give testimony under the Act."' The General Counsel further claims that on November 3, 1977, 2 months before the discharge, Respondent demoted Kuhn for the same unlawful reasons. Respondent asserts that it changed Kuhn's duties in November 1977, and discharged him in January 1978, because of an unsatisfactory work perform- ance. For the 9 month period preceding Kuhn's termination, the meat market manager at Store No. 50 was Melvin Cow- ger. The General Counsel contends, and Respondent de- nies, that Cowger functioned as a statutory supervisor whose actions and statements are attributable to Respon- I That heanng was held on June 8, 1977. 241 NLRB No. 82 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent.2 As will appear hereinafter, the General Counsel must prevail on its contention concerning Cowger in order to sustain its case with respect to the demotion and discharge of Kuhn. B. A Ileged Superison' Salus of Cowger3 In April 1977, Melvin Cowger, who had previously worked as the meat market manager at others of Respon- dent's stores, became the market manager at Store No. 50. At the time of hearing in the instant matter, Cowger still served in that capacity. The meat department at Store No. 50 is staffed by some four or five individuals, including Cowger. The latter wears a badge indicating his status as the department head and is paid at an hourly rate greater than that earned by the other employees in the department. Cowger's immediate superior is Adrian Miller, the dis- trict supervisor, who visits the department approximately once per week. Miller's visits are, generally, 45 minutes to I hour in duration and he spends most of that time conferring with Cowger in an office. At all other times, the meat mar- ket functions under the direction of Cowger. While the store manager occasionally "walks through" the meat de- partment during the course of a day, he does not assign duties or otherwise participate in running the market. Rather, as Miller testified, "Mr. Cowger was directing the operations in that market as far as daily functions were concerned."4 As meat market manager, Cowger spends up to 50 per- cent of his worktime engaged in the performance of rank- and-file type tasks. He also assigns and schedules work, oversees the employees in the performance of their duties, grants time off, and assigns overtime and vacations. Cowger regularly reports to Miller about employee job performance and makes recommendations to Miller concerning hiring and promotions. The record evidence reflects that those rec- ommendations are honored in many, if not all, cases. In addition, Cowger prepares written evaluations of the de- partment employees and orally counsels the employees with respect to same. In certain instances, but not in others, Cowger discusses the evaluations with Miller before send- ing them to Respondent's corporate headquarters.' The evaluation reports sometimes contain recommendations for promotion. 2 After a representation case hearing held in February and March 1977, in Case 17-RC-8218, the Regional Director determined, in his Decision and Direction of Election dated April 18, 1977, that Respondent's meat market managers, including Cowger, are not supervisors within the meaning of Sec. 2(11) of the Act. As a result, the market managers were eligible to vote in an election conducted by the Board among the Topeka area meat department employees on May 13, 1977, and in a second election held on November 30, 1977. The fact-findings contained in this section are based upon the testimony of Cowger. District Meat Supervisor Adrian Miller, and that of employees James Kuhn, Curt Cuffle, Robert Puff, Bruce Winsor, and Sandra Monroe. To the extent that Cowger's testimony differs from that of the other wit- nesses, it is not credited. Cowger was an evasive and hostile witness and I have evaluated his testimony in that light. ' According to Cowger, he is responsible for implementation of "all com- pany divisional policies in the assigned meat department." In October 1977, the evaluation system was changed to the extent of permitting the store manager to play some part in the process. However, to date, at Store No. 50, the store manager's role had been limited to attending the counseling sessions. Based upon the foregoing enumeration of Cowger's du- ties and activities as meat market manager, I find and con- clude that, at all times material herein, Cowger functioned as a supervisor within the meaning of Section 2(11) of the Act. Indeed, a contrary finding would require the further conclusion that the department employees work entirely without in-store supervision. While it is true that Respon- dent exercises a high degree of centralized administrative control over the meat departments of its stores, and that market managers, such as Cowger, do not formulate basic policies, it is also clear, on the state of this record, that Cowger directs the operation of the Store No. 50 meat de- partment, and its employees, on a day-to-day basis. C. The Discharge of Kuhn6 James Kuhn was employed by Respondent from July, 1963, until his termination on January 7, 1978. For the 10- year period preceding his discharge, Kuhn worked in the meat markets at Respondent's Topeka area stores, usually as the "Second Man." At the time he was fired, Kuhn was the most senior meat market employee in the Topeka area. In March 1977, while working at Store No. 47, Kuhn learned from fellow meat department employee Robert Puff that the Union was commencing an organizational cam- paign. Thereafter, Kuhn, Puff, and employee Bruce Winsor discussed the Union, about twice weekly, while in the store lounge. The fourth employee in the department, Carol Dac- kenhauser, was urged by Kuhn to attend a union meeting in order to find out about its program. On April 18, Kuhn was transferred to Store No. 50 as the "Second Man." At the same time, Cowger was transferred to that store from Store No. 20 because, according to the testimony of Daryl Weigel, Respondent's director of meat operations, a personality clash existed between Market Manager Cowger and the Store No. 20 market employees. After the transfer, on April 22, 1977, Kuhn signed a union authorization card. In May, he voted in a Board-conducted election. During the first several months of Kuhn's tenure at Store No. 50, he received complements from Cowger, at least twice weekly, concerning his work performance. Thus, Cowger told him: "Jim, you are doing a real good job. As a matter of fact you're doing a better job than any man that's ever worked for me in the Topeka area."8 On June 2, 1977, Kuhn received a subpena from the Union's attorney, requiring him to appear at a post-election representation case hearing on June 8. The next day, June 3, Kuhn so informed Cowger in the presence of employees 6 Unless otherwise indicated, the fact-findings contained in this section are based upon the testimony of Kuhn, who impressed me as an entirely honest. forthright, and reliable witness. 7 At that time, the meat department at Store No. 47 was staffed by Kuhn, Puff, Winsor, Dackenhauser, and Market Manager Jack Towsley. I Those remarks were consistent with the last written evaluation received by Kuhn while working at Store No. 47. In that document, Kuhn was de- scribed by Market Manager Jack Towsley as a "definitely above average" employee, a "self-starter" with a "good attitude" who was "never late" for work. Accordingly, Towsley recommended that Kuhn be granted a 50-cent- per-hour wage increase. Miller testified at the instant hearing that he agreed with the evaluation at the time it was made. 580 DILLON STORES. DIV. OF DILLON COMPANIES Hurt and Clark. Cowger laughed and said "You got a sub- poena. You're in trouble. You better get you a lawyer." When Kuhn replied that he did not need a lawyer and that he had nothing to hide, Cowger laughed and said "We'll see." At lunch that day, Cowger stated that Kuhn received the subpena because he was responsible for the pregnancy of a 13-year old girl. Four days later, on Monday, June 6, in the presence of Hurt and Clark, Cowger told Kuhn: "Well, Jim, you got subpoenaed for the 8th. I'll tell you what I'll do. I'll give you $5 not to appear for the subpoena." When Kuhn de- clined the offer, Cowger posted a $5 bill on a bulletin board and said, "Jim, you better take this $5. This is the easiest $5 you ever earned." Cowger repeated the offer several times on that and the following day and, finally, raised the amount to $10.9 Kuhn attended the representation case hearing held on June 8, but did not testify. He was seated with employees Cuffle, Puff, Monroe, Winsor, and Smith, some or all of whom did testify on behalf of the Union. During the course of the ensuing months, Kuhn suffered continuous harassment by Cowger. Thus, according to Monroe, who was transferred to the Store No. 50 meat de- partment in October 1977, Cowger cursed and ridiculed Kuhn every day, in front of other employees and custom- ers. On October 25, Miller asked Kuhn to transfer to Re- spondent's Salina store, some 116 miles west of the Topeka area stores. Kuhn declined because, among other reasons, the position paid $2 per hour less than Kuhn was then earn- ing.'° On November 3, Cowger informed Kuhn that he would no longer be allowed to cut meat and that, there- after, Kuhn's duties would be restricted to ordering, stock- ing cases, wrapping, and cleaning. As a result of the change in assignment, Kuhn was required to work until 6 p.m. ev- ery Saturday, as opposed to his former quitting time of 4:30 p.m. on that day. Kuhn asked Cowger to permit him to trade hours with another employee on those Saturdays pre- ceding a Sunday on which Kuhn was scheduled to work (so as to allow him to attend church). Cowger replied that if the schedule did not suit Kuhn, he would have to quit. Respondent grants to its employees an annual "floating holiday," to be taken when desired by each employee. The holiday is normally arranged some 2 weeks in advance. On November 15, Kuhn asked Cowger if he, Kuhn, could take that holiday on the day preceding, or the day following, Thanksgiving. Cowger replied: "Hell no. You can't have it." When Kuhn asked why, Cowger stated: "Because I said so." Later, Cowger explained: "Jim, either you like a man or you don't like a man, just like Ellis Rainsberger (a then recently fired football coach at a local university)." There- after, on December 1, I day following a second election conducted by the Board, Kuhn was notified at 4:45 p.m. 9 Clark is no longer employed by Respondent and did not testify concern- ing the foregoing incidents. Hurt, currently employed at Store No. 50. claimed he had not heard any discussions concerning subpenas. However. employee Monroe credibly testified that Hurt had once informed her that he would testify falsely in order to keep his job. Accordingly, I do not credit Hurt's denial of the subpena discussions. For the reasons stated in fn. 3, 1 assign no weight to Cowger's denials of the above incidents. 10 Kuhn had worked for Respondent in Salina in the years 1963 to 1968. before his transfer to Topeka. At one time, he expressed to Miller a desire to return to Salina. that he would be required by Cowger to take his floating holiday on the next day, December 2. On December 3, Cowger, after arranging the temporary transfer of employee Robert Puff from Store No. 47 to Store No. 50, told Kuhn: "Your brother is coming over." Kuhn said that he did not have a brother and Cowger re- sponded: "Bob Puff, your union brother. If he ain't your brother I can't say who in the hell he is." At another time that day, Cowger referred to employee Al Wiley as Kuhn's union brother." On January 6, 1978, Kuhn was summarily terminated by Miller. That action was taken without prior warning to the employee. In fact, in the 15-year period that Kuhn worked for Respondent, he had never received a written warning. Miller testified that he made the decision to change Kuhn's duties, and then to discharge him, and conceded that those actions were taken without prior warning to Kuhn. According to Miller, it was "Kuhn's overall per- formance plus his effect on the morale I thought he was having on the rest of the people" that necessitated those decisions. Miller later testified that Kuhn was reluctant to accept change: that production decreased when Kuhn was "in the cutting line;" and that, he, Miller, had received complaints about Kuhn from other employees. In support of the first point. Miller cited Kuhn's reluctance to transfer from Store No. 50 to Store No. 47, almost I year before the discharge. No evidence was introduced to support the asser- tion that the cutting line was more productive when Kuhn was not on the team. As to employee complaints, Miller pointed to a transfer request by employee Hurt "to get away from the hassle" between Cowger and Kuhn, as well as to critical reports from Cowger. However, Miller con- ceded that employee complaints about Cowger had previ- ously caused Cowger's transfer from Store No. 20 to Store No. 50 and that, after that transfer, Miller received com- plaints about Cowger from the employees at Store No. 50. Miller's testimony concerning the discharge was vague and, while on the witness stand, he suffered from decided lapses of memory concerning pivotal points. Having read and reread his testimony, I am unable to understand, with any degree of clarity and precision, the assigned reasons for the change of duties and the later discharge. This case presents the precipitous discharge of an em- ployee of 15 years who had maintained an unblemished work record. The discharge was without warning and has not been adequately explained. Until June 1977, Cowger repeatedly referred to Kuhn as the best employee who had ever worked for him. After Kuhn revealed to Cowger the fact that he, Kuhn, had been subpenaed by the Union, there was, according to Respondent, a sudden deterioration in Kuhn's work performance, a claim which has not been substantiated. Cowger's offers of money to induce Kuhn not to honor the subpena; his reference to other union sup- porters as Kuhn's "union brothers;" and the arbitrary man- ner in which he treated Kuhn following the subpena matter, suggest inescapably, in the context of this case, that Kuhn's duties were changed, and then he was discharged, because of his support for the Union. The record contains no other " Monroe testified that she overheard the remark concerning Wiley. Cow- ger denied referring to Puff or Wile) as Kuhn's brothers or union brothers. 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adequate explanation of those actions. Accordingly, I find and conclude that Respondent changed Kuhn's duties, and then discharged him, in violation of Section 8(a)(3) and (1) of the Act.' IV. TILE 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 Re- spondent described in section 1., above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce 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 certain unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent, Dillon Stores, Division Dillon Com- panies, Inc., is an employer engaged in commerce, and in operations affecting commerce, within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union 576, is a labor organization within the meaning of Section 2(5) of the Act. 3. By changing the duties of, and then discharging, James P. Kuhn because of his support for the Union, Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER'3 The Respondent, Dillon Stores, Division Dillon Compa- nies, Inc., Topeka, Kansas, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or changing the duties of employees be- cause they support a union. (b) In any other manner interfering with, restraining, or 12 In view of my conclusions herein, I need not decide whether Respon- dent's actions were also violative of Sec 8(a)4) since, in any event, the remedy would be the same. 1 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. coercing its employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer to James P. Kuhn immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without preju- dice to his seniority and other rights and privileges. (b) Make James P. Kuhn whole for any loss of pay he may have suffered by reason of Respondent's discrimina- tion against him by payment to him of a sum of money equal to that which he normally would have earned as wages, from the date of the discrimination to the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corpo- ration, 231 NLRB 651 (1977) (see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)). (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Post at its stores located in Topeka, Kansas, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Re- gion 17, after being duly signed by Respondent's represent- ative, 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 insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (e) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. "4 In the event that this 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or change the duties of em- ployees because they support a union. WE WILL NOT in any other manner, interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by Section 7 of the Act. WE WILL offer James P. Kuhn immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, 582 DILLON STORES, DIV. OF DILLON COMPANIES 583 without prejudice to his seniority and other rights and bers of Amalgamated Meat Cutters and Butcher Workmen privileges. of North America, AFL-CIO, Local Union 576, or any WE WILL make James P. Kuhn whole for any loss of other labor organization of their choosing. earnings he may have suffered because of the discrimi- nation against him, plus interest. DILLON STORES, DIVISION DILLON COMPANIES, All of our employees are free to become or remain mem- INC.