Kleins Transit Foods, Inc.

KLEINS TRANSIT FOODS, INC. Kleins Transit Foods, Inc. and Retail Clerks Union, Local No. 212 chartered by the Retail Clerks In- ternational Association, AFL-CIO. Case 3-CA-3393 June 28, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On May 8, 1968, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceed- ing, finding that Respondent had not engaged in any unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Ex- aminer 's Decision. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent submitted a brief opposing the excep- tions of the General Counsel. 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 1'0(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 complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceed- ing was heard before me in Buffalo, New York, on March 26, 1968, on the complaint of General Counsel, as amended, and the answer, as amended, of Kleins Transit Foods, Inc., herein called the Respondent.' The complaint alleges a violation of Section 8(a)(3) and (1) and Section 2(6) and (7) 801 of the Labor Management Relations Act, 1947, as amended , 61 Stat. 136, herein called the Act. The parties waived oral argument and a brief filed by Respondent has been carefully considered . No brief was filed by General Counsel. Upon the entire record , and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation, main- taining a place of business at 6221 Transit Road, Depew, New York, herein called the Transit Store, where Respondent, at all times material, has been engaged in the sale and distribution of foods and re- lated products. Respondent annually, a representa- tive period, sold and distributed products, the gross value of which exceeded $500,000. During the same period, Respondent received goods valued in excess of $50,000 transported to its place of busi- ness, in interstate commerce, directly from States of the United States other than the State of New York. The complaint alleges, the answer admits,' and I find that Respondent at all times material is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local No. 212 chartered by the Retail Clerks International Association, AFL-CIO, herein called the Union, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Issue The sole issue raised by the pleadings and litigated at the hearing are whether the Respon- dent, as more fully set forth in the complaint, in discharging Linda Ann Ulric' on September 21, 1967, effectuated said discharge for discriminatory reasons in contravention of the provisions of Sec- tion 8(a)(3) and (1) of the Act. Respondent, by way of answer, denies the com- mission of any unfair labor practice and asserts that the discharge was for cause. ' The charge was filed on December 8. 1967 The complaint was issued on January 31, 1968 Section 102 20, National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, January 1, 1965, pro- vides. interaha, that any allegation in the complaint not specifically denied shall be deemed to be admitted to be true and shall he so found by the Board ' Misspelled Ullrich in the transcript 172 NLRB No. 92 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supervisory Personnel The complaint alleges , and the answer admits, that Julius J. Klein , president , James R. Klein, vice president, and Leon Dolata, Transit store manager, are agents of the Respondent and supervisors within the meaning of Section 2(1 1) of the Act. The complaint alleges , and the answer denies, that David Derkovitz, Transit store Sunday manager, is an agent of Respondent and a super- visor within the meaning of Section 2(1 1) of the Act. This contention is next considered. It is undisputed that Derkovitz is a member of the Union, and, during the workweek, works in the dairy department, inferentially as a nonsupervisory employee. On Sunday, however, Derkovitz is the only member of management present and is in charge of two cashiers and three stockboys. On Sunday, Derkovitz assigns the stockboys to various work described as stocking shelves, bagging, and cleanup work. Derkovitz also advises the Sunday employees when to take break and lunch periods. Section 2(11) of the Act provides: "The term `supervisor' means any individual having authority, in the interest of the employer, to hire , transfer, suspend, lay off, recall, promote, discharge , assign, reward, or discipline other employees, or respon- sibly to direct them, or to adjust their grievances, or effectively to recommend such action , if in connec- tion with the foregoing the exercise of such authori- ty is not of a merely routine or clerical nature, but requires the use of independent judgment." It is well established , in Board and court deci- sions, that Section 2(1 1) must be read disjunctive- ly, that possession of any one of the Section 2(1 1) powers will make one a supervisor, and that it is the fact of possession of the power regardless of its nonexercise that is determinative . N.L.R.B. v. Beaver Meadow Creamery, 215 F.2d 247, 251 (C.A. 3 ).a It is patent, and I find, that Derkovitz, on Sunday, was a supervisor within the meaning of the Act. At the outset of the case, General Counsel moved to amend the complaint to allege that Carl Gmerek, Delaware store manager , is an agent and supervisor of Respondent. Respondent contests this assertion , acknowledging that Gmerek is a super- visor at the Delaware store which is operated by a different corporation, as set forth more fully infra. I find it unnecessary to resolve the question of the authority of Gmerek relative to the Transit store operation. Background Julius J . Klein is president of three family-owned corporations which operate three food stores, identified as Kleins Foods , Inc., which operates a store at 1430 Delaware Avenue , Buffalo, New York, Kleins Bailey Foods , Inc., which operates a store at 3079 Bailey Avenue, Buffalo, New York, and Respondent herein which operates a food store at 6221 Transit Road, Depew, New York. James Klein, son of Julius , is vice president, and Marie Klein, wife of Julius , is secretary-treasurer of all three corporations . All of the stock of the three corporations is owned by the three named , with Ju- lius being the sole owner of the stock of the Bailey store and the majority stockholder of the other two corporations. It is undisputed that there is common ownership , control , and formulation of labor rela- tions policies in the named officers. The records and books of the three corporations are maintained at the Delaware store address where the principal office is located. Respondent has had a series of collective-bar- gaining agreements with the Union , inferentially ex- tending over a period of at least 6 years, and, in- sofar as this record reflects, the relationship has been amicable. The current agreement covering all three stores by its terms is effective from June 20, 1966, to June 21, 1969. There is no background evidence of the commis- sion of any unfair labor practice by Respondent. There is no evidence of conduct constituting inde- pendent violations of Section 8(a)( I) of the Act in this record. The Events of September 17-the Discharge of Ulrich on September 21 The facts set forth in this section are undisputed, except where otherwise indicated. On Sunday, September 17, three stockboys were employed, two from 9 a.m. to 6 p.m., and the third from noon to 6 p.m. One of the former is identified as Jack Clark, whom the record reflects was the boyfriend of the alleged discriminatee herein. About noon, Derkovitz advised Clark to take his lunch hour commencing at I p.m. and ending at 2 p.m. and advised his coworker to take his lunch hour from 2 to 3 p.m. Derkovitz then proceeded to the area where the cashiers were checking out customers. Ulrich, a cashier, scheduled to work from 9 a.m to 6 p.m., was entitled to a lunch hour. The other cashier, identified as Janice Griese, being scheduled to work from noon until 6 p.m , was not entitled to lunch hour. While Ulrich was checking out the purchases of two or three customers who were waiting in line, Derkovitz advised her that she should take her lunch hour commencing at 2 p.m. Ulrich, discon- tinuing her activity of checking out customers at an undetermined point in the conversation, asked Derkovitz what time Jack Clark was scheduled to go to lunch. Derkovitz responded that Clark was scheduled to go at 1 o'clock Ulrich then inquired if she could go to lunch at the same time as Clark, ad- vising Derkovitz that they had come in one car and had to go together. Derkovitz responded in the 4 Sec also Capital7ramu Compam, 114 NLRB 617, 618 KLEINS TRANSIT FOODS, INC. 803 negative. Ulrich then advised Derkovitz that Derkovitz knew that they always went to lunch together. Derkovitz responded that there was too much business, inferentially by reason of numerous customers arriving, after attending nearby churches, between the hours of I and 2 p.m. and that it would be too busy for Ulrich to leave at I p.m. Ulrich then advised Derkovitz that Derkovitz should call Klein "and get his permission." Derkovitz responded that he was in charge and "you will go to lunch when I tell you to." Ulrich, according to Derkovitz, responded, "Well, accord- ing to the Union, you are guaranteed a lunch hour after four hours of work."5 Derkovitz acknowledged that he then advised Clark that Ul- rich was going to lunch at 2 p.m. and that Clark could discuss it with the other clerk and they could switch hours if Clark so desired . It is undisputed that Ulrich and Clark did go to lunch at 2 p.m. Following the usual custom, Derkovitz, on Mon- day morning, advised Dolata, the store manager, of these events which occurred on Sunday. During this period President Klein entered the store and joined the discussion. President Klein related that this episode was the last in a series of incidents in which Ulrich had dis- played a propensity of being insubordinate. He defined the insubordination in terms of Ulrich being told by the person in charge to go to lunch at a given time, then advising, in effect, that she was going to go at the time she wanted to go. Klein, nevertheless, acknowledged that he could not recall all of the details of the conversation between Ulrich and Derkovitz which Derkovitz had related to Klein. Klein asserted that Ulrich had been previ- ously insubordinate to Klein's son , James, within a month of the discharge, to the head cashier, and to Manager Dolata, as more fully set forth infra. Klein described the events as a "build-up" of insubor- dinate acts and asserted "you don't argue with management in front of employees-or in front of customers. The customers were getting very provoked at the time that this argument went on." The decision to discharge Ulrich was a joint deci- sion of both Klein and Dolata. Dolata corroborated the assertions of Klein relative to the meeting of Monday, September 18. Dolata has been store manager for 2 years, and Ulrich had been employed as a part-time cashier for approximately 2-1/2 years. On occasion Ulrich also worked at the Bailey store and at the Delaware store when they were short of help. When Ulrich next reported, on Thursday, Sep- tember 21, about 4 p.m., Dolata advised her that he wished to talk to her. Dolata advised Ulrich that he had heard Derkovitz' version of what occurred on Sunday and advised Ulrich he would like to hear what she had to say. Dolata asserted that Ulrich became emotional and inquired if she was being discharged, and asserted that he advised her, "Not necessarily. I would like to hear your story." Ac- cording to Dolata she again became emotional, walked to the backroom and got her coat, and walked out with her boyfriend, Clark, who was ad- vised that Ulrich was being discharged for insubor- dination.6 Dolata credibly related that the reason for the discharge was insubordination which caused a disruption of the operation and the argument which Ulrich gave Derkovitz in response to his ap- propriate instruction relative to the lunch hour. Dolata described Ulrich's attitude as hostile, sassy, and uncooperative,' the latter in respect to a number of management requests, as set forth infra. It is undisputed that the Union invoked the grievance procedure, under the contract, but was unsatisfied with the result. Earlier Events President Klein, who asserted he had been in business for 29 years, related that there had been earlier reports of insubordination given to him by Manager Dolata, Assistant Manager Sarnowski," and Head Cashier Haen, as well as a report of non- cooperation by a fellow cashier Rozanski, and also by Klein's son, James. Dolata acknowledged having reported to Klein that he had repeatedly advised Ulrich to stop drink- ing pop at the register while she was checking out customers and likewise to stop eating candy bars at the register, that if she wished she should do these things on her break periods. While Dolata acknowledged that other cashiers had engaged in similar activity he described Ulrich as the biggest offender. Ulrich did not dispute these assertions of Dolata or contradict them. Rather she relied on the assertion that, at times, she would finish up late at night, leave the pop bottle on the register, and for- get to place it in the back. Dolata asserted that on a number of occasions he would ask Ulrich to do something and she would respond that it was not in the union contract and she did not have to do it. Dolata acknowledged there had been no employee previously discharged by him in his 2 years as manager, with the excep- "' It is undisputed that a 60-minute lunch period for employees working a full day is provided for in the collective-bargaining agreement However, the contract does not specify the asserted time qualification Ulrich's version on this point was, "And then I know I said to him that it was in the contract that by rights I should have a break every 4 hours, you know, there's a break, and it could have been lunch " While I find it unnecessary to resolve this conflict, the contract does pro- vide for a 10-minute rest period for every 4 hours worked for part-time em- ployees " I find of no consequence the fact that there was no confrontation between Derkovit7 and Ulrich, relative to the events of Sunday Ulrich acknowledged that Dolata advised her that she had "humiliated I Derkovrti) in front of all the customers " ' Ulrich related that when Dolata advised her that Klein had advised him to discharge her she responded , "If Mr Klein told him to swim up Niagara Falls backwards, that that 's precisely what he'd do " Sarnowski did not appear as a witness 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion(of one employee by reason of diminishing busi- ness.9 Teresa Haen, head cashier, credibly related that she customarily obtains substantial amounts of change money from the bank and verifies the accu- racy of the amount received by counting rolls of coins. It was customary, if she was needed by reason of a large number of customers waiting to be checked out, for the cashier to merely call her first name and she would nod in acknowledgment, meaning that she would be down as soon as she was through counting. One day, in July or August 1967, while she was so engaged, Ulrich hollered loudly, "Don't you think you ought to come down here and cash," in what Haen described as a "sassy" tone. Haen described the event as upsetting and embar- rassing. Haen who sets up the lunch hours for cashiers, inferentially during the week, with the approval of Dolata, credibly related that she advised Ulrich to go to lunch at 12 noon. Haen explained that or- dinarily she goes to lunch at 1 p.m. because the manager or assistant manager, whichever is on duty, goes to lunch at 12 noon. Ulrich inquired why she could not go at I o'clock. As a result, Haen discussed the matter with Dolata who advised Haen to advise Ulrich to go to lunch at the time specified. Haen described this event as being in the summer of 1967, shortly before the other incident involving Haen.10 Carol Rozanski is also a part-time cashier at the Transit store, being initially employed on June 3, 1966. She is a sister of Derkovitz. She credibly re- lated that in the spring of 1967 she was given the "silent" treatment by Ulrich and Eileen Fisher, another cashier, who would not provide her with prices on items when she so requested, a common practice. She advised Ulrich that her conduct was childish and stupid and Rozanski complained to Dolata." Klein summarized Ulrich's prior conduct as non- cooperative with fellow employees, alluding to the Rozanski incident, not complying with store policy, the drinking of soft drinks and eating of candy while waiting on customers, and "telling off management when they requested something of her." Klein described this as a buildup for a period of approximately 6 months. Klein related that in late August or early September 1967, while his son, James, was replacing a manager on vacation at the Transit store, James inquired of Ulrich as to what time she was going to lunch and she advised him that it was none of his business. Richard D. Adams has been the chief executive officer of the Union for 18 years. Adams related that he had a telephone conversation in late August with Klein in which Klein asked if an employee could be terminated for insubordination. Adams as- serted that he responded that he had never heard of an arbitrator reversing a case of insubordination. Adams asserted that at that time there was no identification of the individual. However, a few days later Adams had occasion to visit Klein at the Bailey Street store, in late August or early Sep- tember, and at this time Klein described Ulrich, ac- cording to Adams, as a "big-mouth" who would not cooperate and was causing trouble. Adams acknowledged inquiring, as his "parting shot" if that be the case "why then don't you terminate her." It is undisputed that this preceded the events of September 17. Protected Activity Ulrich related a variety of incidents in which she engaged in protected concerted activities. In view of General Counsel's assertion, on the record, that it was this protected activity of Ulrich that gave rise to Respondent's seeking a pretext to justify her discharge, the following is set forth. Ulrich related that on April 1, 1967, Dolata was on vacation and Sarnowski, assistant manager, was in charge of scheduling employees for work. Ac- cording to Ulrich, she and Eileen Fisher should have been given preference, however, Sarnowski scheduled two other cashiers who had less seniori- ty. Ulrich asserted she advised Sarnowski that she and Fisher could file a grievance for the 8 hours. Sarnowski, after checking the matter, acknowledged that he had made a mistake and ex- pressed his regret. According to Ulrich, Sarnowski also advised her that he would just as soon that she did not go to the Union. Sarnowski did not appear as a witness and Ulrich's testimony stands un- disputed. Ulrich related that in late August 1967, when Clark received his paycheck, she checked the con- tract and determined that he had not received a raise which was due him under the contract. She sought the assistance of Gotthelf, union business agent, who suggested that she and Clark talk to Klein. She and Clark then went to the Delaware Street store and talked to Gmerek. Gmerek checked the records, acknowledged that an error had been made, and advised that it would be cor- rected. It is undisputed that the error was cor- rected. Ulrich asserted that she related to Gmerek, ap- parently at approximately the same time as the Clark incident, that a Ricky Fisher and a Sandy Szeleba were suspended and, in the words of Ul- rich, "there was almost a mass sabotage out there " However, Dolata apparently was in error in asserting that no other em- ployee was suspended It is reasonable to infer that at least one employee was suspended for misconduct, shortly before the episode related herein, as set forth infra "' Ulrich was unable to recall being reprimanded for yelling at Haen It is obscure whether she was in fact so reprimanded " Ulrich acknowledged that Klein had inquired as to how she was getting along with Roz.utski, explaining that she had not gotten along with her Ul- rich asserted she advised Klein that things were better Inferentially this conversation occurred approximately in June 1967 KLEINS TRANSIT FOODS, INC. 805 because there [sic] were suspended." Gmerek responded, according to Ulrich, "Well, if he would .have caught them kissing in the back room, he would have fired them too." Ulrich asserted that she declined to answer when Gmerek asked her what she would have done, but asserted she advised that she did not think that the procedure was cor- rect, since there had been no previous suspension for this offense. Ulrich then corrected her recita- tion to say that only Fisher had been suspended and that Gmerek volunteered that they were not going to fire Fisher but would keep on suspending him until he quit. I do not credit this recitation of Ul- rich, finding it highly improbable that Gmerek would have made such a statement , particularly since he had no direct responsibility in connection with the operation of the Transit Store where the suspension took place. Ulrich asserted that about a year prior to her testimony, in March , she had a conversation with Manager Dolata who was setting up schedules for cashiers and stockboys who were part time and part-time students . According to Ulrich, she in- dicated that she would be available on Tuesday nights, but inquired if she could have the first Tuesday of every month off so she could attend union meetings . Ulrich asserted that Dolata responded not to let Klein know that she wanted to go to union meetings and she decided not to press the matter any further. In view of the complete absence of any evidence herein of union animus on the part of Klein and in view of remoteness of this alleged incident to the time of discharge, I am una- ble to find this recitation credible.12 Warnings Ulrich's assertion that she had never been warned , prior to September 1, 1967, that her con- duct might lead to a discharge , stands undisputed. Ulrich acknowledged Clark was warned "that there was not supposed to be any fooling around in the store ," when a meat department employee, unidentified , reported to Klein that Ulrich and Clark were observed bussing , in April or May 1967. She acknowledged that Klein later reprimanded her "in a completely joking manner." Concluding Findings At the conclusion of the General Counsel's case, Respondent moved for dismissal. Decision was reserved . At that point in the hearing , all of the evidence in the record recited herein had been received, except the testimony of Chief Cashier Haen and employee Rozanski . The testimony of these two witnesses is peripheral to the principle issue and , in a sense, corroborative of the assertions of President Klein . While I am of the view that Respondent 's motion should be granted after a careful review of the record , I have elected to con- sider the entire record to avoid any possibility of a remand in the event the Board is of a different view. General Counsel urges that there was no steward at any of the Klein stores and that Ulrich acted as a self-appointed , ad hoc, steward . General Counsel concedes that there was a " pleasant and unruffled relationship between the Union " ( and Employer) for many years , but asserts Ulrich's aggressiveness modified that situation . General Counsel asserts that insubordination did not occur on September 17 and the incident was used merely as a pretext. I am unable to agree with these contentions and find no merit in them. Respondent correctly asserts that the burden of proving discrimination is upon the General Coun- sel.13 The Respondent, in its brief, after recounting the incidents reflecting that Ulrich was uncoopera- tive, sassy , impolite , and disruptive , acknowledges that the question in this case is not whether Ulrich was discharged for just cause . Rather , the question is whether the motivation for discharge was her in- volvement in protected activities. In Burnup & Sims '" the Supreme Court noted that on many occasions the Board had held that Section 8 (a)(1) is violated if an employee is discharged for misconduct arising out of a pro- tected activity , despite the employer 's good faith, when it is shown that the misconduct never oc- curred. Unlike the Burnup & Sims case it cannot be said herein that Ulrich was engaged in protected activity at the time of her discharge . She embarrassed the Sunday manager , Derkovitz, by engaging in an ar- gument or disputation with him, in front of customers, meanwhile neglecting her assigned du- ties, over the single question of whether she should go to lunch at a time designated by the manager. The single issue at that point was whether , as Ulrich desired , the scheduled lunch period of either Ulrich or Clark could be changed. The fact that she chose, inaccurately, to assert working conditions, of which she assertedly had been advised by the Union or, al- ternatively, were purportedly contained in the union contract, did not transpose or convert her objectionable conduct to protected activity . In fact, General Counsel has not urged that the discharge was for protected activity , as such, but rather that it was discriminatorily motivated. There is not a scintilla of evidence that Julius Klein, or Dolata, who made the decision to discharge , or Derkovitz, who reported the incident, have at any time given voice to an antiunion at- titude or reflected any resentment of Ulrich's ac- tivities as a self-appointed steward , if that is an ap- 1d While Dolata testified herein his tcstimony preceded that of Ulrich and he was not recalled to affirm or deny this particular assertion Citing G H Hurls & Sum, bu 141 NLRB 1272, 1277 "NLRB v Bui nup & Sum, lit( , 379 U S 21, 24 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD propriate characterization . I was impressed by the demeanor and the straightforwardness of these three . I am not unmindful of the fact that Klein called the attention of Adams , union representa- tive , to prior instances of misconduct on the part of Ulrich which he characterized as insubordination, at a time which preceded the incident of September 17 and the following discharge by several weeks. It is undisputed that the fact that this matter might have been settled by the grievance procedure or arbitration under the contract does not preclude the Board from considering and deciding the question of whether an unfair labor practice, in fact, occurred. Producers Grain Corporation, 169 NLRB 466. The function of the Board , however, is not to determine , as would an arbitrator , whether the penalty assessed was excessive in the light of the offense . Rather , it is well established that it is not within the province of the Board to determine whether the employee was discharged for a good reason , a bad reason , or no reason at all, but only whether there is probative evidence of credible value which would support a finding that the discharge was discriminatorily motivated. There can be no question that membership in a union neither increases nor decreases the duties and responsiblities of employees in their deport- ment, conduct, and attitude toward management representatives, particularly with reference to car- rying out proper instructions . The assessment of Klein relative to the unsatisfactory attitude of Ul- rich which precipitated her discharge is in part demonstrated by her own comment to Dolata, rela- tive to swimming up Niagara Falls backwards, at the time of her discharge. I find the preponderance of the credible evidence , as found herein , does not establish that Respondent was discriminatorily motivated in discharging Linda Ann Ulrich. Accordingly, I will recommend dismissal of the complaint. Upon the foregoing findings of fact, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local No. 212, chartered by the Retail Clerks International Association, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not discriminated with respect to the hire and tenure of employment, and terms and conditions of employment, of Linda Ann Ulrich within the meaning of Section 8 (a)(3) and (I) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint be dismissed in its entirety.