Tolly's Market, Inc.

TOLLY'S MARKET, INC. 379 Tolly's Market, Inc.-Ben Franklin and Retail Clerks International Association Local 418 Af- filiated with Retail Clerks International Associa- tion, AFL-CIO. Case 38-CA-768 discharge of a relative of a union activist is violative of Sec 8(a)(3) and (1) of the Act if the discharge is related to the union activity See Golub Bros Concessions, 140 NLRB 120 TRIAL EXAMINER 'S DECISION June 15, 1970 DECISION AND ORDER BY MEMBERS FANNING , BROWN , AND JENKINS On March 16, 1970, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed a brief in support of the Trial Examiner's Decision, to which the Respond- ent filed an answering brief. 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 powers in connection with this case to a three- member panel. 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, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the recom- mended Order of the Trial Examiner and hereby orders that the Respondent, Tolly's Market, Inc.- Ben Franklin , Decatur, Illinois, its officers , agents, successors , and assigns , shall take the action set forth in the Trial Examiner 's recommended Order. i These findings and conclusions are based , in part , on credibility deter- minations of the Trial Examiner, to which the Respondent has excepted Having carefully reviewed the record , we conclude that the Trial Ex- aminer's credibility findings are not contrary to the clear preponderance of all the relevant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 2) We agree with the Trial Examiner that Miss Woodrum was discharged because her mother married the union organizer It is noted that the Union had recently expressed to the Respondent an interest in representing the Ben Franklin employees The Board has held that the Statement of the Case PAUL E. WEIL, Trial Examiner: On charges filed September 22, 1968, by Retail Clerks International Association Local No. 418 affiliated with Retail Clerks International Association, AFL-CIO, herein called the Union, against Tolly's Market, Inc.-Ben Franklin, herein called Respondent, the General Counsel by the Acting Officer-in-Charge for Subre- gion 38 (Peoria, Illinois ) issued a complaint and notice of hearing on November 12, 1969, alleging that Respondent violated Section 8(a)(3) and 8(a)(1) of the Act by the termination of an em- ployee, Vicki Woodrum, and its subsequent refusal to reinstate her. By its duly filed answer Respond- ent denied the commission of any unfair labor practices and alleged that Vicki Woodrum was not discharged but quit her job. I heard the matter at Decatur, Illinois, on February 5, 1970. All parties were represented at the hearing and had an oppor- tunity to call witnesses and introduce evidence, to state their positions on the record, and to file briefs. The parties waived oral argument at the close of the hearing . Briefs have been received from the General Counsel and the Charging Party. Respond- ent submitted proposed findings of fact and con- clusions. After the close of the hearing, before briefs were filed, Respondent moved to reopen the record for the purpose of receiving in evidence two timecards of Vicki Woodrum. Arrangements to do this were made at the hearing, when an ambiguity appeared with regard to the period during which Miss Woodrum was on vacation. No response to Re- spondent's motion was received. The motion is granted, and the timecards are received as Re- spondent's Exhibits (a) and (b). Upon the entire record in this matter and in con- sideration of the briefs and proposed findings and conclusions, I make the following findings and con- clusions: 1. THE BUSINESS OF THE RESPONDENT It is alleged and admitted that Respondent is an Illinois corporation engaged in operating retail variety stores in Decatur, Illinois , with an annual gross volume of sales exceeding $500,000 and an- nual purchases of goods and material valued in ex- cess of $50,000 transported directly to its stores in Decatur, Illinois, from points in States other than the State of Illinois. It is admitted and I find that Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 183 NLRB No. 46 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent operates a number of grocery mar- kets in and around the city of Decatur, Illinois. In conjunction with some or all of the grocery markets Respondent additionally operates variety stores known as Ben Franklin Stores. Commencing in January 1968 the Union through the efforts of one Robert Camp commenced organizing the em- ployees of three of the grocery markets. The or- ganizational campaign resulted in a petition for an election being filed with the National Labor Rela- tions Board by Mr. Camp. An election was held, set aside by action of the Board, and a second election held on March 27, 1969, pursuant to which the Union was certified as the representative of the grocery employees in a three-store unit. When the union agents including Robert Camp first sat down with the Employer to negotiate for a contract covering the three-store grocery unit the Union's spokesman asked if there was any possibili- ty of talking about the employees of the Ben Franklin stores at the same time . He was informed that it was not possible. One of the markets which had a Ben Franklin store operated in conjunction with it was known as the Northland store. At this store all checkouts were through the grocery department so that the Ben Franklin store had no cashiers. It was staffed by Manager Rosalie Kaul, by Vicki Woodrum, and by several high school and college students working part time. The functions of the personnel employed at the Northland Ben Franklin store consisted of stockkeeping, including ordering and keeping stock clean, pricing merchandise, arranging display space and keeping it filled. They were also expected to assist customers. Vicki Woodrum had been employed in the Northland store for approximately 3 years. She and Rosalie Kaul, the manager, have been close per- sonal friends through much if not all of that time and in fact lived together until February or March of 1969 at which time Miss Woodrum's father suf- fered a heart attack and she apparently moved into his home to take care of him. On June 14 Union Organizer Camp married Vicki Woodrum's mother who was then employed at one of Respondent's other stores as a cashier. At that time Vicki Woodrum was in California on a 2- week vacation. She returned from her vacation in order to work on June 22 in place of Miss Kaul who normally worked on Sunday. During the next week Miss Kaul asked Miss Woodrum if she would con- sider a transfer, stating that she thought that her su- pervisor, Ed Boals, would like to split the two girls up and suggesting that Miss Woodrum would probably be transferred to another store. Miss Woodrum said that she would prefer to go to the store in the Pines rather than the one at the Mall.' The following Saturday, July 5, about 4 p.m., Miss Kaul and Miss Woodrum left the store and went to a local bowling alley where they had a drink and a conversation. Their accounts of the conversation differ widely. According to Miss Woodrum, Miss Kaul asked her to quit, stating that otherwise she would have to discharge her. Miss Woodrum declined to quit because she could not draw unemployment compensation if she did, whereupon Miss Kaul assured her that she could say anything she wanted at the employment office and Miss Kaul would back her up. Miss Woodrum asked what was wrong with her work and Miss Kaul assured her that there was nothing wrong with her work, that she had so informed Mr. Boals, but that he had said to get rid of Miss Woodrum. Miss Woodrum also testified that she thought Miss Kaul said that they already had somebody to take her place. She commented to Miss Kaul that she thought the reason she was being discharged was because of her mother's marriage to Mr. Camp to which Miss Kaul answered, "You are right." Miss Kaul's version as I stated was completely different. She testified that she had criticized Miss Woodrum because her work was poorly done on the morning of July 5 and that later that day Miss Woodrum came to her and said she was quitting because she was not happy with the working condi- tions or with her salary. At this point Miss Kaul ac- cording to her testimony suggested they go to the bowling alley and have a drink. There she asked Miss Woodrum again why she wanted to quit so badly and Miss Woodrum answered that she was not happy and she would not put forth the effort to do her work, and she was no longer "going to be friends" with Miss Kaul. The girls agreed that after their conversation at the bowling alley they returned to the shop where Miss Woodrum picked up her purse and then proceeded to Miss Woodrum's home. Again their stories differ as to what took place there. Accord- ing to Miss Woodrum they arrived to find her father with three other persons. As they walked in, Miss Kaul stated that Miss Woodrum had just quit her job. Her father asked what she meant, "quit her job," to which Miss Woodrum answered that she did not exactly quit, she was given a choice and told that she was going to be fired anyhow so that she did not have a job. She stated that at this point she went to her bedroom to change her clothes. Ac- cording to Miss Kau] the two girls walked into the house and Miss Kaul suggested, "Let's go to the rodeo, everybody." Miss Woodrum looked at her father and said, "Guess what, I just quit my job." ' Miss Kaul did not testify with regard to this conversation nor did she deny that it took place Accordingly I credit Miss Woodrum TOLLY'S MARKET, INC. Miss Kaul said, "That's right." Mr. Woodrum said, "Is that right?" and Miss Kaul said, "Yeah, that's right. Are you going to the rodeo with us?" It ap- pears that Miss Kaul went to the rodeo alone. Miss Kaul also testified that Miss Woodrum departed at this point to change her clothes. Sunday and Monday were normally Miss Woodrum's holidays. On Monday, July 7, she called Miss Kaul and said that unless Miss Kaul told her that she was discharged she was coming to work the next morning. Miss Kaul said at that time that she was discharged. Later Miss Woodrum came to the conclusion that she should not be discharged over the telephone. Accordingly, the following day, Tuesday, she went to the store and clocked in and found that her name was not on the schedule but that another employee was working. She left the store and went to another Ben Franklin store where she found Mr. Boals. She told him that she understood that she had been fired. Boals an- swered, "Weren't you told that Saturday night?" She then asked for her check and he said that he did not think she could get it because the checks would not be made out until the next day. She went upstairs to get her check but was unable to get it on that occasion.' Discussion It is apparent that if I credit Miss Woodrum's testimony the General Counsel must prevail. Respondent's defense rests completely on the testimony of Miss Kaul and in turn if I credit her, Respondent must prevail. I credit Miss Woodrum; I discredit Miss Kaul for the reasons set forth hereinafter. Respondent would have us believe that Miss Woodrum quit because Miss Kaul was requiring her to do her work better-to do a better job of house cleaning, of marking merchandise, of taking care of customers, and so forth, because her pay was too small, and because of the failure of her friendship with Miss Kaul. Miss Kaul testified that commencing in April 1969 for reasons inexplicable to her the quality of Miss Woodrum's work depreciated rapidly. She frequently called Miss Woodrum to task for this and at first Miss Woodrum would improve for a brief period of time but that her work would then begin to deteriorate again. On July 5 Miss Kaul found the counters assigned to Miss Woodrum to be understocked and messed up, merchandise to be incorrectly displayed or not displayed at all, the un- derstock to be dirty and covered with an accumula- tion of dust, and the merchandise to be marked in- correctly or not at all with the price as required by the store. This occasioned the complaint she made to Miss Woodrum which in turn led to Miss Woodrum's resignation. Respondent called as a witness a young girl who had been assigned to the counters usually assigned 381 to Miss Woodrum during Miss Woodrum's vaca- tion. This employee testified that when she was as- signed the cases the stock was in poor condition and it was dirty and incorrectly marked with prices. She testified that she spent the time during Miss Woodrum's vacation correcting the situation, cleaning up the understock, pricing the merchan- dise, and correcting the displays. Respondent also produced an application for em- ployment signed by Mary Sanders, whom Respond- ent identifies as the employee hired by Miss Kaul to take the place of Miss Woodrum after Miss Woodrum resigned. The application is dated July 7, 1969, in the handwriting of Miss Sanders, and Miss Kaul testified that it was on July 7 that she first in- terviewed the applicant. However the reverse side of the application contains a report of the interview of Miss Sanders dated July 3, 1969, and states that the applicant was hired July 3, 1969, to report on July 7, with Miss Kaul's signature. Miss Kaul testified that she had no explanation for the date July 3 appearing on the document and stated that she never heard of this employee prior to the night of July 6 when she found out about her from the manager of another store. Under the circumstances that the records of Respondent tend to impeach Miss Kaul's testimony in this regard one would think that Miss Sanders would be produced by Respondent as a witness to resolve the difficulty. This was not done nor is any explanation therefor forthcoming. Accordingly I can only conclude that Respondent did not produce Mary Sanders because her testimony would not corroborate that of Miss Kaul. The date on the application does however corroborate the testimony of Miss Woodrum that Miss Kaul when discharging her stated that she had already hired her replacement. I further find that the actions of the two girls in going together to Miss Woodrum's home after the conversation in the bowling alley is inconsistent with Miss Kaul's version of what took place at the bowling alley. If in fact Miss Woodrum quit in part, as Miss Kaul testified, because she and Miss Kaul were no longer friends it appears improbable that they would have left together and that Miss Kaul might have expected Miss Woodrum to go to the rodeo with her. On the other hand, assuming the fact to be as stated by Miss Woodrum, it is not all inconsistent that Miss Kaul, having admittedly been required to ask Miss Woodrum either to quit or be fired and attributing this to Boals, her supervisor, would have expected a continuity in her friendship with Miss Woodrum. The record contains no evidence that Miss Woodrum had ever expressed dissatisfaction with her wages or asked for them to be raised. Finally with regard to the conversation that took place at Miss Woodrum's home I find it beyond be- 2 This conversation was not denied by Mr Boals, who was present in the hearing room when Miss Woodrum gave her testimony 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lief that the conversation would have taken place as Miss Kaul testified. Miss Woodrum is blind in one eye. She did not find it easy to secure a job. Nevertheless Miss Kaul would have us believe that she walked in and announced that Miss Woodrum had quit and her father's only remark was, "Is that right?" and no explanations were sought or offered. Mr. Woodrum's testimony that he questioned his daughter's statement that she had been given the choice of quitting or being fired and after his daughter went into her room to change her clothing had a discussion with Miss Kaul as to the relative advantages of quitting or being discharged is much more probable under the circumstances. The fact that his testimony is corroborated by the apparently honest testimony of two disinterested witnesses who were present is convincing to me. Further corroboration of course is to be found in the telephone conversation on the following day undenied by Miss Kau], in which she told Miss Woodrum that she was discharged and in the con- versation between Miss Woodrum and Mr. Boals on the following Tuesday in which he gave her the same information. Under all the circumstances in the case I credit Miss Woodrum's account of her discharge, including her testimony that Miss Kaul admitted that the reason for the discharge was her mother's marriage to the union organizer.3 I find that Respondent, by discriminating against Miss Vicki Woodrum, discouraged the union or- ganizational activities of its employees and inter- fered with, restrained, and coerced them in the exercise of their rights to join the Union if they so desired. By so doing I find Respondent violated Section 8(a)(3) and (1) of the Act. IV. THE REMEDY Having found that Respondent discriminatorily discharged Vicki Woodrum in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that Respondent cease and desist from such unfair labor practices and be required to take certain affirma- tive action which the Board finds necessary to remedy and remove the effects of such unfair labor practices and to effectuate the policies of the Act. I shall recommend that Miss Woodrum be offered immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and be made whole for any loss of pay she may have suffered by reason of the discrimination against her from the date of the discrimination, July 5, 1969, to the offer of reinstatement. Loss of pay shall be computed as prescribed in F. W. Woolworth Com- pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent be ordered to make available to the Board, upon request, payroll and other records in order to facilitate the checking of the amount of backpay due. CONCLUSIONS OF LAW 1. By discharging Vicki Woodrum because of her mother's relationship with an agent of the Union and in order to discourage activities on be- half of the Union, Respondent committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On the findings, conclusions, and the entire record it is hereby recommended that the Board issue the following: ORDER Tolly's Market, Inc.-Ben Franklin, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Retail Clerks International Association Local 418 affiliated with Retail Clerks International Association, AFL-CIO, or in any other labor organization of its employees, by discriminating against any employee because of his relationship with the Union by discharging him. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their right to self-organization, to form labor organization, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Vicki Woodrum immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay which she may have. suffered as a result of the discrimination against her in the manner set forth in the section herein enti- tled "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 to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its stores in Decatur, Illinois, copies ' I do not view the unemployment compensation referee's decision as corroborative inasmuch as it appears on its face to have been based on a hearing at which no representative of Respondent was present TOLLY'S MARKET , INC. 383 of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Officer-in- Charge for Subregion 38, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 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 it to in- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Officer-in-Charge for Subregion 38, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.' 4 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations, and recommended Order herein shall, as provided in Section 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 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 Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Officer-in-Charge for Subregion 38, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " WE WILL offer Vicki Woodrum immediate and full reinstatement to her former or sub- stantially equivalent position, without preju- dice to her seniority or other rights and privileges, and make her whole for any loss of pay which she may have suffered as a result of the discrimination against her. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named labor organization or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. All our employees are free to become or refrain from becoming members of the above-named or any other labor organization. TOLLY'S MARKET, INC.- BEN FRANKLIN (Employer) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Retail Clerks International Association Local 418 affiliated with Retail Clerks International Association , AFL-CIO, or any other labor or- ganization by discriminatorily discharging our employees because of their relationship to the Union and their activities in connection therewith. Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Savings Center Tower, 10th Flooor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9282, Extension 282.