Big Bear Super Market No. 3, Inc.

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT threaten employees with reprisals because they sign union authorization cards nor will we in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations , to join or assist International Union , United Automobile, Aerospace and Agricultural Implement Workers of America, AFL- CIO, or any other labor organization , to bargain collectively through represen- tatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or 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) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. HOBART BROTHERS COMPANY, Employer. Dated-------------- ----- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced , or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No.- Main 1-4465, if they have any questions concerning this notice or compliance with its provisions. Big Bear Super Market No. 3, Inc.- and Building Service Em- ployees' International Union, Local 102, Building Service Employees' International Union, AFL-CIO. Case No. 21-CA- 5919. January 13, 1985 DECISION AND ORDER On November 9, 1964, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled case, finding -that the Respondent had not engaged in the unfair labor practices' alleged in the, com- plaint and recommending that the complaint be dismissed, as set forth. in the attached Trial Examiner's Decision. Thereafter, -the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support of the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Fan- ning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, includ- 150 NLRB No. 95. BIG BEAR SUPER MARKET NO. 3, INC. 967 ing the exceptions and brief, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the exceptions noted below.' [The Board dismissed the complaint.] 1In reaching this result, we disagree with the Trial Examiner 's conclusions that the interrogation of Coble, if it in fact occurred , was de m mimx8 and would not warrant the finding of an unfair labor practice within the meaning of Section 8(a) (1) However, on the basis of the record as a whole , we credit the testimony of Respondent 's manager that such Interrogation did not take place. We believe that a contrary finding would be inconsistent with the uncontroverted testimony. Thus, the record indicates: Respondent had a good bargaining history with the Retail Clerks in this and affiliated stores ; Re- spondent expressed its belief that the janitors should be represented by a labor organiza- tion regularly acting for this category rather than by the incumbent Retail Clerks ; Respondent, when approached by such a union ( Building Service Employees'), cooperated by introducing Coble to its organizer ; and Respondent replaced Coble with a man who had previously worked in a unionized store. Therefore , we affirm the Trial Examiner's rec- ommendation that the 8 ( a) (1) charge be dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter was heard before Trial Examiner Martin S. Bennett at San Diego, California, on August 6 and 7, 1964. The complaint 1 alleges that Respondent, Big Bear Super Market No. 3, Inc., has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. Oral argument was waived and briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Big Bear Super Market No. 3, Inc., a California corporation, is engaged in the retail sale of groceries at Poway, California . It annually enjoys gross revenues in excess of $500,000, and receives goods valued in excess of $50,000 which are shipped to it directly from points outside the State of California. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Building Service Employees' International Union, Local 102, Building Service Employees' International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issue; introduction Respondent's store at Poway is one of a number of stores owned by various cor- porations which are controlled by President John Mabee. This store has approxi- mately 15 employees who, except for the 1 janitor, are represented either by an unidentified local of the Butchers Union or by Retail Clerks Union Local 1222. Geoffrey Cooper is manager, Garry Wilson was assistant manager at the time mate- rial herein, and Robert Thing is produce manager. i Issued June 12, 1964 , and based upon a charge filed April 23, 1964, by Building Service Employees' International Union, Local 102, Building Service Employees' International Union, AFL-CIO, herein called the Union. A motion by the General Counsel to amend the complaint and add other parties respondent was granted at the hearing. In his brief, the General Counsel has moved that said ruling be rescinded and the motion is hereby granted. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel alleges that: The Union commenced an organizational cam- paign among the approximately six janitorial employees of some of these corpora- tions including Respondent ; on April 18, 1964, Respondent discharged James Coble, its janitor, because he had joined or assisted the Union ; and there was unlawful inter- rogation of Coble concerning his union activities . Respondent in effect contends that it discharged Coble because cigarettes had mysteriously disappeared from the market on four occasions and that Coble was the most likely suspect. While Respondent has contended , on occasion , that other matters contributed to Coble's discharge, it is clear, and I find, that it basically advances the cigarette incidents as the cause of the discharge. B. Union activities Coble was hired as a janitor on January 4, and terminated on April 18, 1964, by Store Manager Cooper. He was told when hired that his salary would be increased from $65 to $70 a week if he proved satisfactory and, approximately 6 weeks there- after, this was done without any solicitation on his part. The interest of the Charging Union actually stemmed from the presence of other labor organizations in the picture. Retail Clerks Union Local 1222, which repre- sented the clerks, claimed jurisdiction over all employees - other than butchers. Respondent maintained , however, that janitors did not do the work of clerks and that Local 1222 should not represent them. This being so, Local 1222 took the position that the labor organization which represented janitors should represent them. As a result, the Union was brought into the picture on April 2, 1964, when Phyllis Rasor, a representative of Retail Clerks Union Local 1222, accompanied by Business Agent Mueller of the Charging Union, visited Respondent's store at Poway. Permission was obtained from Manager Cooper to speak with Coble after Cooper cleared this with Buyer Gerald Holmes; the latter also gave approval to visits by these union representatives to other stores of the affiliated corporations. On this occasion, Coble signed an application for membership in the Union. Coble testified that approximately 30 minutes after the union representatives left the store, Manager Cooper, concededly a supervisor, asked if he had signed a union card; Coble replied in the affirmative. Cooper then told him that he should con- tact the Union and get his card back, claiming that he had changed his mind about joining; Cooper pointed out that the store did not want the Union because it had its own program for janitors. According to Cooper, Coble approached him shortly after the business agents left the store , appeared upset, and stated that he had signed a union card. Cooper asked why he had done so and Coble replied that Business Agent Rasor of the Retail Clerks had said that he had to sign up either with the Retail Clerks or with the Charging Union, and that it was simpler and cheaper to select the latter; Coble accordingly signed an application for the Union. Cooper then stated that Coble did not have to sign up if he chose not to and Coble replied that he simply would not pay his dues. Buyer Gerald Holmes of Respondent, concededly a supervisor, testified that he had been told by Representative Jacobs of the Retail Clerks that Secretary-Treasurer James Hawes of the Union would be contacting him concerning the representation of janitors. Hawes testified that he telephoned Holmes shortly after April 6, announced that he was calling pursuant to Jacobs' suggestion and stated that he had signed cards from a majority of the janitors. Holmes replied that he did not want his janitors in the Union and that if Hawes persisted in this organizational effort, the janitors would be discharged and Hawes would be responsible. Holmes claimed, however, that he anticipated the call, that Hawes identified himself as a representative of the Union, that he, Holmes, promptly told Hawes that he had nothing to discuss with him at that time, and that nothing further was said. On or about April 8, according to Coble, Cooper asked him if he had contacted the Union (about changing his mind concerning union representation ). Coble replied that he had not done so. According to Cooper, this topic did not come up again after the discussion on April 2, described above. On Saturday morning, April 18, 1964, Coble worked 2 hours from 6 to 8 a.m. to make up time not worked earlier that week. At 9.30 a m., he met with Store Manager Geoffrey Cooper who discharged him. Coble pressed Cooper for a reason and was told, as he testified, only that he did not "fit into" Respondent's organization or "into their program." There had been no advance notice of this action. According to Respondent, the decision was made by President John L. Mabee on the previous day and was predicated upon the disappearance of cigarettes . Respond- ent's reasons for not giving Coble the true reason for his discharge are treated below. It is undisputed that on Friday night , April 17, Respondent changed all the locks in this store . Indeed, Coble happened to be shopping there at the time, BIG BEAR SUPER MARKET NO. 3, INC. 969 observed the change being made, and surrendered his key which' was one of four outstanding.2 C. The disappearance of cigarettes On four separate occasions in the approximately 2i weeks preceding the dis- charge of Coble on April 18, 1964, two cartons of cigarettes mysteriously dis- appeared from the store. Respondent contends that it concluded that Coble was the most likely suspect and therefore decided to discharge him. The evidence con- cerning the disappearance of the cigarettes is found in the mutually corroborative testimony of Store Manager Cooper, then Assistant Manager Garry Wilson, Produce Manager Robert Thing, and John Anderson, an employee of Del Smith Company. The latter concern is not connected with Respondent and was then engaged in the repair of Respondent's refrigeration equipment. Respondent's store is laid out in the customary supermarket pattern with a front selling area and a wall separating the rear of the store. There are doorways through this wall to the rear where are located a produce room, meat preparation room, grocery storeroom, toilets, and also a.machmery room. Around the first of April, Anderson was performing some work in the machinery room and discovered two cartons of cigarettes behind some piled wire shelving in that area.3 They were far removed from their customary location. Anderson promptly reported this to Produce Manager Thing who brought Manager Cooper to the scene. Anderson and Thing placed the time as after lunch. Assistant Manager Wilson was also summoned and Cooper decided that the cigarettes should be left where they were in order to "see what happens to them." It was decided in a manner not unlike that of the Keystone Kops of movie history that the three store representatives would endeavor to keep an eye on the area and perhaps apprehend the culprit. Thing reported for work at 6 a.m., Cooper at 8 a.m., and Wilson at noon, and they respectively left at approximately 3, 6, and 9 p.m. Each would check the area at these hours and also on such other occasions as they had an opportunity to do so. Thing, for example, would check three times daily, when he reported for work, at noon, and at 3 p.m 4 The cigarettes disappeared either 1 or 2 days later. Cooper did not know the hour that their disappearance was discovered. According to Wilson, in all instances the cigarettes would disappear "in the middle of the day." He later placed this as between noon and 7:30 or 8 p.m., during his noon to 9 p.m. shift. Wilson also testified that on the first occasion the cigarettes disappeared around noon. A day or so later, Thing arrived for work at 6 a.m., inspected the same area, and again discovered two cartons of cigarettes 5 Thing advised Cooper of his dis- covery upon the latter's arrival at 8 a.m. On the following day, according to Cooper, he went to lunch and learned on his return that the cigarettes were gone. He contended that Coble was working alone in this area at the time that he, Cooper, went to lunch. Wilson, as indicated, testified that they uniformly diasppeared between noon and 7:30 or 8 p.m. He also testified, although it is not clear whether he was referring to the second or to a later theft, that he told Cooper one evening that they were gone. One or two days later Thing, on reporting for work at 6 a.m., for the third time found two cartons in the same location and so advised Cooper at 8 a.m. Within a day or so, these also disappeared in the same mysterious manner, after noon. 2 Coble, it is to be noted, was the only janitor in Respondent's system who had a key. Normally, such keys are given only to the store manager, the assistant manager, and the produce manager. In Coble's case, it became necessary to give him one when be started a 3 a.m. to noon shift on March 11 or 12, 1964. While it is not clear whether Coble asked for or was offered the key, I deem this immaterial to a resolution of the issues herein. 'Anderson recalled only that this was in the spring The other witnesses for Re- spondent variously placed this occasion between the latter part of March and the first part of April. 4 Coble, it will be recalled, worked from 3 a.m. until noon, this schedule having been established on March 11 or 12. His former starting hour had been at 6 a.m., but the concrete floor was tiled as of March 10 and Coble experienced difficulty in finishing the washing and waxing of the floor prior to the opening of the market. Accordingly, he was changed to the earlier starting hour. Cooper testified that except for Fridays when a clerk came in at 5 a.m to receive a grocery shipment, Coble was alone in the store between 3 and 6 a.m. According to Coble, this took place on Tuesdays as well. 50n all four occasions these were one each of two specified brands. Coble testified that both he and his wife smoke, and named several other brands. ' 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cooper testified that the last theft was on a Saturday night.6 Thing had left the store at 3 p.m. and Cooper at 6 p.m. and both observed the cigarettes in the custom- ary location. Cooper returned to shop at 7:30 p.m., observed Coble in the rear of the store near the meat department, and then left the premises. Wilson, in checking the area at 9 p.m., noticed that the cigarettes were gone and so informed Cooper. It is undisputed that Coble had a practice of visiting the store when off duty, i.e., subsequent to finishing his shift at noon. He testified that he had done cleanup work on occasion at night and it is also clear that he shopped at the store. Matters came to a head on Friday, April 17. If one goes to the roof of the store, he may look down through ventilating slats into the machinery room where the cigarettes had been found. Cigarettes were in the area at noon on that date and Respondent attempted to trap the culprit. Thing went to lunch and a produce employee in the rear of the store was assigned to duties in another area. Cooper instructed Wilson to proceed to the roof and maintain surveillance over the area where the cigarettes were. Wilson did so and arrived on the rooftop approximately at noon. After 5 or 10 minutes, according to Wilson, Coble appeared on the roof, but did not state what he was doing there. Wilson felt constrained to state that he, Wilson, was checking the area because burglars had previously obtained entry to the store through this spot. It is undisputed that a burglary did take place approximately January 1, 1964, and that entrance was obtained through this area. Cooper telephoned President Mabee, told him of the incident, and Mabee ordered Coble's discharge, although suggesting that another reason be advanced and nothing said about the cigarettes. Mabee also ordered the locks changed on this occasion. Coble testified that a salesman from a linen supply concern came to the store that day and inquired for Cooper, who, according to Coble, had telephoned the sales- man that morning; presumably, this is what the salesman told Coble. Coble was unable to find Cooper and sought Assistant Manager Wilson instead. He asked still another salesman, unidentified herein, if he had seen Wilson and the latter replied that he observed Wilson climb to the roof several minutes before. Coble immedi- ately obtained a ladder, climbed to the roof, found Wilson and asked Wilson where Cooper was. Wilson replied that Cooper had gone to the bank. Coble announced that a linen supply salesman was awaiting Cooper. Wilson then commented that a screen torn during the burglary should be repaired. Both men then left the roof. I credit Wilson concerning the roof incident as his testimony is more rational and believable under all the circumstances herein. Coble was the janitor and had no duties involving the linen supply. It is readily apparent, even on the face of Coble's testimony, that the store was a customer of the linen supply concern, or a potential customer, and not the converse. Coble needed only to tell the salesman that Cooper was out and that the assistant manager was on the roof. Coble not being privy to the purpose of Wilson's trip to the roof, he could assume that his stay would be a short one. Significantly, Coble's testimony is silent as to any request by the salesman that he, Coble, go after Wilson. Coble testified only that he felt this was a courtesy to the salesman. Under normal circumstances, I believe that Coble would have informed the salesman as to Wilson's whereabouts and, at the very least, waited for an appropriate interval before going to the roof, if at all. More likely, he would have busied himself with his duties or left the store, particularly inasmuch as his shift had concluded at noon. His conduct appears more consistent with curiosity or interest going beyond the mere performance of his duties and lends support to the purported reason behind Respondent's immediately ensuing action in discharging him. There is still another factor here. Coble testified that, immediately after the linen supply salesman asked for Cooper, he, Coble, made an inquiry and was told that "they thought Mr. Cooper had gone [to the bank] for money.. . " Nevertheless, on going to the roof, he asked Wilson where Cooper was and received the same answer. Stated otherwise, he knew the answer before going to the roof and his con- duct is more consistent with checking on Wilson's purpose in going to the roof. D. Conclusions A number of factors support the position of the General Counsel. Initially, the testimony of Coble, if credited, demonstrates some opposition on the part of Store Manager Cooper to his joining the Union. While there is evidence that Coble's work was not entirely satisfactory, the fact is that he was told when hired on Janu- ary 6 that he would be given a $5 raise if his work proved satisfactory and this was 9 There is evidence that cigarettes were in this area on Friday, April 17. It is not clear whether this was the fourth, or rather a fifth occasion in which they were not taken, as described below. BIG BEAR SUPER MARKET NO. 3, INC. 971 done 6 weeks later. There is also uncontroverted evidence that he was complimented on the cleanliness of the store by various supervisory officials, including Store Mana- ger Cooper and Buyer Holmes. The very manner in which Respondent attempted to capture the suspected thief is hardly impressive. If the cigarettes were disappearing after noon , it would have been a much simpler matter in terms of effectiveness to put Coble under surveillance any time that he appeared in the store after the end of his shift at noon. It is also apparent that had Coble desired to do so, he was in a most advantageous position to take cigarettes prior to 6 a.m. when he was alone in the store, although, on the other hand, I believe that this does not stand up because it leaves the General Counsel in the position of claiming that the suspect could have been more efficient and accomplished the deed in one step rather than in two. There is evidence that in furnishing affidavits to an investigator for the General Counsel, Respondent's representatives were silent concerning this reason for Coble's discharge. On the other hand, Buyer Holmes uncontrovertedly testified that Presi- dent Mabee of Respondent told the Board's investigator, in Holmes' presence, of Respondent's suspicions and stated that in the absence of actual proof Respondent was reluctant to allege this specifically in an affidavit. Indeed, Holmes was instructed by Mabee, in front of the investigator, not to state any such matter in his, Holmes', affidavit because there were only suspicions. Similarly, Manager Cooper uncontro- vertedly testified that he was instructed not to state this reason in his affidavit because Respondent might be subjected to a (private) lawsuit, that he therefore did not, and that he told the investigator there was another reason but that on Mabee's orders he was not stating it. There are a number of items which, on the other hand, substantially support Respondent's position. (1) Coble's union activities were not prominent because the entire store, but for him, was organized by two other labor organizations. And to demonstrate an absence of hostility, President John Mabee uncontrovedtedly testified that upon request he immediately signed a contract with this same labor organization for another of his corporations. Moreover, when the union representatives visited this and other affiliated stores, Respondent's representatives cooperated completely and, in fact, rendered them assistance by giving them company time and property to engage in union activities. And, according to Cooper, he has replaced Coble with a man who had worked in a completely unionized store. (2) While the record warrants the finding that Coble's services were satisfactory, his tenure with Respondent dated back only slightly over 3 months. Stated other- wise, he was not an employee of long tenure whose termination presumably would warrant a closer and more considered look. (3) The cigarettes, in most of the incidents, were discovered early in the morning and almost immediately after Coble was joined in the store by coworkers. While it is true, at first impression, that Respondent's defense is weakened by the fact that the cigarettes uniformly disappeared after noon, subsequent to the end of Coble's shift, and were this the fact without exception, the General Counsel' s case might be viewed more sympathetically; on the other hand, Coble is either placed in the store after the close of the shift, admits that he visited employees in the store subsequent to the close of the shift, returned on occasion to perform tasks in the store, and shopped in the store, as indeed he did on Friday evening, April 17. (4) Respondent has both advanced and retreated from a claim that it was influ- enced in the final analysis by certain commercial activities of Coble. Be that as it may, Coble was somewhat of a David Harum who enjoyed purchasing appliances, fans, and similar equipment at auctions, bankruptcy sales, and swap meets which he regularly attended. There is some conflict as to whether, in his contacts with fel- low workers, he solicited them to purchase these objects or whether they, knowing of his bent, asked him to procure same. It would seem that these transactions originated in both manners . Paradoxically, when asked herein if this was a sideline he engaged in for profit, he replied that this was not so as he was not interested in making a profit. It is apparent that some of these sales were at extremely low prices, in one case well below wholesale as investigation by Respondent prior to Coble's discharge dis- closed. And it is against this somewhat unusual background for a store janitor that the decision to terminate Coble took place. (5) Respondent contends that after the incident on the roof on April 17, Coble perforce would realize that he was being spied upon. Accordingly, Cooper con- tacted the head office and requested Coble's termination. While I have some diffi- culty in absorbing Cooper's rationale that in view of the roof incident no more cigarettes would be taken, the fact is, as noted, that Coble's conduct on April 17 was not consistent with disinterested behavior on the part of the store janitor. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (6) While there is evidence that on occasion others were in the area of the machinery room, or nearby, it would seem that Coble was there quite regularly. And, as noted, except between 5 and 6 a.m., once or twice a week, Coble was alone in the store between 3 and 6 a.m. In this respect, it is noted that, according to President Mabee, cigarettes have not been found in the machinery room subsequent to the termination of Coble.7 (7) While the language used in discharging Coble was equivocal if not evasive, Cooper uncontrovertedly testified that he used the same language in discharging Coble's predecessor when his work proved to be unsatisfactory. To sum up, the evidence is less than compelling that Coble was correctly sus- pected by Respondent as being involved in the disappearance of the cigarettes. On the other hand, the evidence does not preponderate in favor of a finding that Respondent was unwarranted in suspecting Coble and that its choice of Coble for discharge was pretextuous in nature. Nor do I deem it unreasonable that an employer who had fastened upon a suspect, correct or otherwise, would in an area where tort liability is being extended be reluctant to depose a ground of this nature to an investigator. Indeed, Respond- ent's officials did state that another undisclosed ground existed. Finding as I do that the evidence does not preponderate in favor of the position of the General Counsel, I shall recommend that this allegation be dismissed. E. Alleged interference, restraint, and coercion The complaint alleges that on or about April 2 Store Manager Cooper interro- gated employees concerning union activities. As set forth, union representatives visited the store on that occasion and Coble signed a union card. Coble testified that after the meeting Cooper asked him if he had signed a card and, upon receiving an affirmative answer, told him to contact the Union and retrieve the card. Cooper, on the other hand, testified that Coble approached him after the union representa- tives left and expressed concern over the fact that.he had signed a card, Cooper responding that Coble did not have to sign if he chose not to. Coble also testified that on or about April 8 Cooper asked him if he had contacted the Union about changing his mind concerning union representation. According to Cooper, there was no such second talk. On the posture most favorable to the General Counsel, I am of the belief that this evidence, even if credited, is de minimis and does not warrant the finding of an unfair labor practice. I shall accordingly recommend that this allegation be dis- missed. CONCLUSIONS OF LAW 1. The operations of Respondent, Big Bear Super Market No. 3, Inc., affect com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Building Service Employees' International Union, Local 102, Building Service Employees' International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act. RECOMMENDED ORDER In view of the foregoing findings of fact and conclusions of law, it is recommended that the complaint be dismissed in its entirety. 71 am not unaware that this is equally consistent with someone other than Coble, on learning of Coble's discharge, deciding to purchase his cigarettes in the future. Superex Drugs, Inc. and Retail Clerks International Association, Local No. 31, AFL-CIO. Case No. 8-CA-3347. January 13,1965 DECISION AND ORDER On July 29, 1964, Trial Examiner George L. Powell issued his Decision in the above-entitled proceeding, finding that the Respond- 150 NLRB No. 97.