Sentry Food Store

SENTRY FOOD STORE Metcalfe, Inc. d/b/a Sentry Food Store and Retail Store Employees Union, Local No. 444, AFL-CIO. Case 30-CA-1158 June 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On May 1, 1970, Trial Examiner David S. David- son issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices alleged in the complaint and recommend- ing that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. 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, Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations 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 Respondent, Metcalfe, Inc. d/b/a Sentry Food Store, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S . DAVIDSON, Trial Examiner : Pursuant to a charge filed on December 22, 1969 , by Retail Store Employees Union , Local No . 444, AFL-CIO, referred to herein as the Union , a complaint issued ' Unless otherwise indicated herein, all findings are based on uncon- tradicted testimony which I have credited 367 on January 30, 1970, alleging that on November 6, 1969, Respondent discriminatorily discharged Frank Peck in violation of Section 8(a)(3) and (1) of the Act. In its answer Respondent denies the commission of any unfair labor practices. A hearing was held before me in Milwaukee, Wisconsin , on March 10, 1970. At the close of the hearing, oral argument was waived , and the parties were given leave to file briefs which have been received from the General Counsel and Respon- dent. Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a Wisconsin corporation doing business under the trade name Sentry Food Store. It is engaged in the retail sale of meats , foods, and other commodities at Monona and Brookfield, Wisconsin. During the year 1969, a representative period, Respondent's gross sales were in excess of $500,000 in volume, and Respondent received meats, food products, and commodities in interstate commerce directly or indirectly from points outside the State of Wisconsin valued in excess of $50,000. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that assertion of jurisdiction herein is warranted. II. THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union, Local No. 444, AFL-CIO, is a labor organization within the mean- ing of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The employment and duties of Frank Peck Frank Peck was hired by Respondent in February 1969 as an assistant manager-trainee at its Brook- field store with a pay rate of $3.25 an hour.' During his employment, Peck answered to Jerome Met- calfe, owner and general manager of Respondent, and to George Weiss, store manager. Peck's duties were to order grocery items for a portion of the store, place stock on shelves, check customers out, and bag groceries. On Wednesday, Friday, and Saturday nights after store closing hours Respondent employed a crew of about five part-time employees to stock shelves. Peck was usually assigned to direct this crew on Friday nights and whenever he was scheduled to work on the 184 NLRB No. 40 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other nights that the crew worked. In addition, he sometimes opened or closed the store, and every third Sunday he was left in charge of the store. At all other times either Metcalfe or Weiss was present at the store. Peck estimated that he was left in charge at the store on an average of about 8 hours a week, during which the store was open for busi- ness only 2 or 3 hours. Respondent received grocery deliveries twice a week, on Wednesday and Saturday. In connection with his direction of the shelf-stocking crew Peck determined on the basis of the rate of sale of in- dividual items what was to be placed on the shelves and what was to be retained in Respondent's storeroom as backup stock. Each member of the crew had a portion of the store for which he was responsible and knew generally what his duties were. When Peck was in charge, he was expected to oversee the work of the crew and to make cer- tain that it completed its work properly. The crew was scheduled to work until 12 or 12:30 a.m. It was expected to complete its work within the scheduled time, but if it could not do so, Peck was authorized to keep it working until the job was completed, and the crew members understood that they were to work until they finished. Peck was instructed that when he was in charge, if any employee did not do his job or refused to fol- low Peck's direction, he was to send the employee home or tell him to see Metcalfe about it. Peck never had occasion to implement this instruction.2 Peck assumed responsibility for ordering grocery items for a portion of the store about 3 months after his employment began, and assumed at that time that his training period was over. Peck ordered only from a single source , the Godfrey Company.3 He based his orders on his knowledge of the quanti- ties necessary to keep the shelves currently stocked. He had only limited authority to order stock for advance needs and consulted Weiss be- fore ordering for any substantial quantity beyond usual needs. Peck had no authority to hire or discharge em- ployees, although on one occasion he suggested to Weiss that a member of the part-time night crew be released because he did not want to work Friday nights when the crew regularly worked. The em- ployee stopped working shortly thereafter, but the record does not indicate whether or not it was a result of Peck's recommendation. Peck did not in- terview applicants for employment and played no part in the scheduling of work for other employees. Within the portion of the store for which he was responsible for keeping merchandise stocked, Peck had authority to ask stockmen or other employees to assist him. Peck punched a timeclock, as did Store Manager Weiss, and was paid time and a half for hours worked in excess of 40. L Others, who like Peck opened or closed the store, were also given this instruction They included the dairy department manager and a part-time employee of long standing with no title who was sometimes left in charge during the evening Respondent contends that Peck was a supervisor within the meaning of the Act. As Respondent con- tends, Peck's status is to be determined from his authority and not from his title. However, the facts set forth above, which were undisputed, persuade me that Peck lacked the indicia of supervisory authority essential to a finding of supervisory status and that his authority to direct other employees in their work was routine. Accordingly, I find that Peck was not a supervisor within the meaning of the Act.4 2. The Union's attempt to organize Respondent's store and Metcalfe's knowledge thereof In the latter part of October 1969, the Union mailed letters to a number of Respondent's em- ployees, and a few days later, on October 28, Union Business Agent Ronald Kazel visited Peck at his home. Kazel told Peck that the Union was trying to organize Respondent's store and explained some of the benefits under contracts it had with other em- ployers, including Sentry Food Stores owned and operated directly by Godfrey Company and other independently owned Sentry Food Stores. After some discussion Peck signed a union authorization card. During the remainder of the week, Peck spoke to a few other employees about the Union, indicating his support for the Union. On Friday night, October 31, he spoke with part-time checker Nancy Gingras commenting that in his view it would be ad- vantageous to have the Union come in. She in- dicated some doubt as to whether or not the Union was good for her. On that night, General Manager Metcalfe in- itiated a conversation with Peck about the Union. Metcalfe told him that "as you well know" there was a group trying to organize the store. Metcalfe said that he did not know who started it, but that he did not believe it was necessary for a group of out- siders to become involved in Respondent's busi- ness . He mentioned that Store Manager Weiss, the meat market manager, and several other employees had been with him for a number of years, and that if he didn't treat them right, they probably would not have stayed with him for that length of time. Metcalfe said that he knew that those people would not have started the organizing campaign. Peck did not respond other than to agree that the employees mentioned by Metcalfe were loyal employees and that Metcalfe must have treated them fairly and justly or they would not have stayed. At the conclu- sion of his comments, Metcalfe told Peck that he had told him all he wanted to say and that Peck could return to work. Metcalfe concededly learned of the Union's or- ganizing attempt in the latter part of October from ' Respondent operated pursuant to a franchise from Godfrey and purchased the majority of its food products from Godfrey 'Buckeye Village Market , Inc, 175 NLRB No 46, The Great Atlantic & Pacific Tea Company, 132 NLRB 799, 801 SENTRY FOOD STORE employees who brought him copies of letters that were mailed to their homes and mentioned to him that they had been contacted by mail or telephone. Nancy Gingras was among the employees who told him of union contacts. Sometime in October after learning of the or- ganizing campaign , Metcalfe contacted McGlynn, Peck, and Associates, an organization which had performed credit and personnel background in- vestigations for him in the past. Metcalfe asked Mc- Glynn to conduct "research" with respect to the Union and two of its agents. According to Metcalfe he asked for this investigation so that he would know what kinds of individuals he was dealing with. On Friday, October 31, Respondent posted a notice informing employees that there would be a meeting for all store personnel on Monday, November 3, at 9 p.m. All employees were requested to attend. The meeting was held as scheduled. Metcalfe told the assembled employees that he wanted to say a few words about the group trying to organize the store. He said he believed that all of them had heard about it and that he did not believe his employees needed an outside group to do their bargaining for them. He told them that either as individuals or through an appointed spokesman for the group they could meet with him at any time and discuss problems, grievances, dis- agreements , or whatever. He pointed out that the union representatives did not work for nothing but that like anyone else in order to live they had to earn money. He said that they earned money by or- ganizing stores like Respondent's and they made their livelihood from the dues employees paid. Metcalfe also told the employees that if the Union represented them every employee would be treated equally, and, as an example, stated that if an employee wanted to have a particular night off or a change in hours it would not be possible because after a schedule was posted it could not be deviated from in any respect. Metcalfe concluded his remarks by telling the employees he would leave so that they could discuss their views among them- selves. 3. Peck's discharge On Thursday, November 6, 1969, around noon Metcalfe asked Peck how late he was working that day. Peck replied that he was scheduled to work until 5 p.m. Metcalfe told Peck that he wanted to see him before he left. At about 4:45 Metcalfe called Peck to the office area near the front of the store and asked Peck to accompany him to another office area located on an upper level above the selling area of the store. After arriving there, Metcalfe told Peck that he had been with Respondent for almost a year and he ' Peck testified that in August Metcalfe told him that he was not assisting Weiss enough , that Metcalfe was aware that Peck had come to work on oc- casion with alcohol on his breath , and that Metcalfe did not want these 369 thought Peck was ready for an advancement, but as Peck knew, with Metcalfe and Weiss serving as managers, there was no place for Peck to advance with Respondent. Metcalfe told Peck that for this reason he was sending Peck to the Godfrey Com- pany office to see its personnel men about employ- ment at one of its directly owned stores. Peck said that he hoped that he had done nothing to cause any problem. Metcalfe replied that he had not. Metcalfe told Peck that he would give him a per- centage of his vacation pay because he had been there 9 months. Then Metcalfe gave Peck a cloth bank bag and said "here is a little gift on your leav- ing, 30 silver dollars." Metcalfe told Peck to punch out, and Peck gathered up his personal belongings and left. Although Metcalfe had told Peck in Au- gust 1969 that he was dissatisfied with his work,5 Metcalfe made no reference to his dissatisfaction with Peck during his conversation with him. On the next day, November 7, Peck went to Godfrey's offices and was hired after being inter- viewed as assistant manager of Godfrey's Wau- kesha, Wisconsin, store, where he started work on the following Monday. The Waukesha store was represented by the Union. 4. Concluding findings Metcalfe did not dispute the accuracy of Peck's version of his terminal interview, but testified that he decided to discharge Peck around noon on November 6, because he became convinced that Peck monitored a call Metcalfe received at that time from McGlynn, relating to the reports Met- calfe had requested on the Union and its represen- tatives. I find it unnecessary to discuss in any detail the evidence pertaining to the alleged monitoring, which Peck denied, because even Metcalfe testified that after hearing Peck's denial at the hearing, he was willing to rehire Peck and would not make the same snap judgment again. Thus, Respondent does not seriously contend that Peck monitored the call, but stresses that Metcalfe believed Peck had moni- tored the call when he discharged Peck and that he discharged Peck because of that belief. After hearing Metcalfe's testimony and observing him as he testified,6 I find it impossible to credit his testimony as to his reason for terminating Peck. Metcalfe was a wary and hesitant witness, frequently pausing at length before answering rela- tively simple questions. The heart of his examina- tion dealt with his "gift" of 30 silver dollars to Peck and the reasons for it. Only with reluctance did Metcalfe concede that he could not recall any other discharged employee to whom he gave a gift, despite the fact that the conclusion merely restated testimony he had already given. When asked the form of his gift, Metcalfe displayed even greater things to reoccur Metcalfe testified as an adverse witness called by the General Counsel 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reluctance before conceding that it was 30 silver dollars. Then, when asked why he gave Peck 30 silver dollars, Metcalfe replied simply that it was a gift, evaded the question in two different ways, again replied merely that it was a gift , and when the question was repeated for the fifth time, Metcalfe paused and asked counsel to repeat the question again. Only after Respondent's counsel interjected with an offer to stipulate that Metcalfe gave Peck 30 silver dollars as a symbol that Peck was a Judas, did Metcalfe answer the question , stating that the "gift" was a symbolic way of saying that Peck had been a Judas because he monitored the telephone call. There can be no doubt that the 30 silver dollars were given Peck as a symbol that he was a Judas as Metcalfe ultimately testified. But Metcalfe's testimony as to the reason he considered Peck a traitor cannot be credited. Surely, if Metcalfe's conscience were not troubling him, there was no reason for his extreme hesitancy and reluctance to explain the "gift." Rather one would have expected him to have been eager to explain away the other- wise adverse connotation of his act. Moreover, if the alleged monitoring had been on Metcalfe's mind, there was no reason why he should have ex- pected Peck to understand his allusion on November 6, for he never made Peck aware that he suspected him, and if Metcalfe suspected Peck, there was no reason for him to have invented a false reason based on lack of opportunity for ad- vancement to justify a discharge in the middle of a workweek and just before what are usually the 2 busiest days in the retail grocery business.7 Having rejected Metcalfe's explanation, one does not have to look far to find the reason for Peck's discharge. Respondent was opposed to the or- ganization of its employees. Although there is no direct evidence that Metcalfe gained knowledge of Peck's union activities, Metcalfe concededly knew of the organizing campaign and had received re- ports of the union activities from employees, in- cluding one to whom Peck had spoken of his sup- port for the Union. However, it is unnecessary to find that Metcalfe knew of Peck's union activities based on these facts alone or considered with Met- calfe's rather pointed remarks to Peck on October 31, for the inference of knowledge is readily drawn from Metcalfe's conduct on November 6. Through the "gift" of 30 pieces of silver to Peck as a sym- bolic gesture Metcalfe spoke more eloquently then with words to tell Peck he considered Peck a trai- tor. The only plausible alternative to the rejected explanation given by Metcalfe is that Metcalfe deemed Peck a traitor because he had learned that Peck was supporting the union campaign which r Although Respondent suggests that Peck was transferred and not discharged , its answer states that Peck was discharged and it is clear that Respondent terminated Peck's employment Perhaps to avoid liability or perhaps for the humanitarian reasons expressed by Metcalfe at the hearing, Respondent helped Peck to get alternative employment with a different employer , but Peck was nonetheless discharged Metcalfe opposed . The same act which reveals Metcalfe's knowledge , coupled with the admitted assignment of a false reason to Peck for his ter- mination , suffices also to establish that Peck's ter- mination was caused by his union activities and in- tended to discourage them . Accordingly, I find that Respondent violated Section 8(a)(3) and ( 1) of the Act by discharging Frank Peck. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the Respondent 's operations described in section I, above, have a close, intimate , and substantial rela- tionship 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 violated Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. As I have found that Respondent discriminatorily discharged Frank Peck on November 6, 1969, I shall recommend that Respondent be ordered to offer him immediate and full reinstatement to his former job, or if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of the amount he normally would have earned as wages from the date of his discharge to the date of an offer of reinstate- ment, less net earnings, to which shall be added in- terest at the rate of 6 percent per annum, in ac- cordance with the formula set forth in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716 Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Metcalfe , Inc. d/b/a Sentry Food Store, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Retail Store Employees Union , Local No. 444, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 8 Although the evidence indicates that Peck rejected an offer of rein- statement prior to the hearing and may not have suffered any loss of earnings, the adequacy of the reinstatement offer and the extent, if any, to which Peck lost earnings are better left to the compliance stages of this proceeding for resolution Transport, Inc of South Dakota, et al., 181 NLRB No 69 SENTRY FOOD STORE 3. By discriminatorily discharging Frank Peck, Respondent has engaged in and is engaging in un- fair labor practices affecting commerce within the meaning of Sections 8(a)(1) and ( 3) and 2(6) and (7) of the Act. RECOMMENDED ORDERS Upon the basis of the above findings of fact, con- clusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent Metcalfe, Inc. d/b/a Sentry Food Store, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Retail Store Employees Union, Local No. 444, AFL-CIO, or any other labor organization , by discriminating in regard to the hire or tenure of employees or any term or condition of their employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their rights to self-organization , to form labor organizations, to join or assist Retail Store Employees Union, Local No. 444, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any 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 rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Frank Peck immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed. (b) Make Frank Peck whole for any losses he may have suffered by reason of the discrimination against him in the manner set forth in the section of the Decision above entitled "The Remedy." (c) 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 relevant and necessary to a determination of compliance with paragraphs (a) and (b), above. (d) Notify Frank Peck if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Post at its Houston, Texas, place of business 371 copies of the attached notice marked "Appen- dix."10 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's authorized representa- tive, 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 the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 30, in writing, within 20 days from,the receipt of this Decision, what steps have been taken to comply herewith. t t 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 10 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 be changed to read "- Posted Pursuant to a Judgment of the United States Court of Appeals En- forcing an Order of the National Labor Relations Board " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Frank Peck immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and WE WILL make him whole for any losses he may have suffered as a result of his discharge. WE WILL notify Frank Peck if presently serv- ing in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL NOT discourage membership in Retail Store Employees Union, Local No. 444, AFL-CIO, or any other labor organization, by discriminatorily discharging any of our em- ployees. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exercise of their rights to self-organization, to form labor organizations , to join or assist Retail Store Employees Union, Local No. 444, AFL-CIO, or any other labor organization, to bargain through representatives of their own choosing , and to engage in other concerted ac- tivities for the purposes of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. METCALFE , INC. D/B/A SENTRY FOOD STORE (Employer) 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 , 2d Floor Commerce Building, 744 North 'Fourth Street , Milwaukee, Wisconsin 53203, Telephone- 414-272-3861.